Evidence [1987] ALRC 38

The Law Reform Commission is established by Section 6 of the Law Reform Commission Act 1973. to promote the review, modernisation and simplification of the law. The first members were appointed in 1975. The main office of the Commission is at Level 10, 133 Castlereagh Street, Sydney, NSW, 2000, Australia. The Commission also has an office in Canberra.

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Terms of reference

EVIDENCE

I, PETER DREW DURACK, Attorney-General of the Commonwealth of Australia, HAVING REGARD TO -

(a) the recommendations of the Senate Standing Committee on Constitutional and Legal Affairs, made in its Report on the Reference: The Evidence (Australian Capital Territory) Bill 1972 that:

(i) a comprehensive review of the law of evidence be undertaken by the Law Reform Commission with a view to producing a code of evidence appropriate to the present day; and

(ii) a Uniform Evidence Act be drafted:

- to apply the same law of evidence to A.C.T. and to the external Territories;

- as far as is appropriate, to apply the same law of evidence in all Commonwealth courts and tribunals; and

- to include the matters now covered in the Evidence Act 1905 and the State and Territorial Laws and Records Recognition Act 1901; and

(b) the need for modernization of the law of evidence used in Federal Courts, the Courts of the Australian Capital Territory and the external Territories and Federal and Territory tribunals by bringing it into accord with current conditions and anticipated requirements;

HEREBY REFER to the Law Reform Commission as provided by the Law Reform Commission Act 1973 TO REVIEW the laws of evidence applicable in proceedings in Federal Courts and the Courts of the Territories with a view to producing a wholly comprehensive law of evidence based on concepts appropriate to current conditions and anticipated requirements AND TO REPORT:

(a) whether there should be uniformity, and if so to what extent, in the laws of evidence used in those Courts; and

(b) the appropriate legislative means of reforming the laws of evidence and of allowing for future change in individual jurisdictions should this be necessary.

IN MAKING ITS INQUIRY AND REPORT the Commission will have regard to its functions in accordance with sub-section 6(1 ) of the Act to consider proposals for uniformity between laws of the Territories and laws of the States.

DATED this l8th day of July 1979

Peter Durack

Attorney-General

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Participants

The Commission

The Division of the Commission constituted under the Law Reform Commission Act 1973 to deal with this Reference comprised the following Members of the Commission:

President

The Honourable Xavier Connor, AO, QC, LLB (Melb) (from 6 May 1985)

The Honourable Mr Justice MR Wilcox, LLB (Acting) (from 23 September 1984 to 5 May 1985)

The Honourable Justice MD Kirby, CMG, BA, LLM, BEC (Syd) (resigned 1984)

Commissioner in charge

Mr TH Smith, QC, BA, LLB (Melb)

Commissioners

The Honourable Justice GE Fitzgerald, LLB (Qld) (to 1984)

The Honourable Mr Justice FM Neasey, LLB (Tas) (to 1984)

Mr T Simos, QC, M Litt (Oxon), LLM (Harv), BA, LLB (Syd)

The Honourable Mr Justice MR Wilcox, LLB (Syd) (from 6 September 1984).

The Honourable Justice DM Ryan, BA, LLB (Melb) (from 12 April 1984)

Officers of the Commission

Secretary and Director of Research

Stephen Mason, BA, LLB, MTCP (Syd) (from May 1986)

Mr IG Cunliffe, BA, LLB (ANU (to May 1986)

Legislative drafting

Stephen Mason, BA, LLB, MTCP (Syd)

Law Reform Officers

Michael Ball, BA, LLB (Adel), Senior Law Reform Officer (to 1983)

Peter Driessen, BA, LLB (Macq), Law Reform Officer (1984)

Ian R Freckelton, BA, LLB (Syd), Senior Law Reform Officer

Alexis Hailstones, B Juris, LLB (NSW), Law Reform Officer (1984)

Catherine MacAdie, LLB (Syd), Law Reform Officer (1984)

Stephen Odgers, BA, LLB (ANU), Senior Law Reform Officer (to February 1986)

Loretta Re, BA, LLB, Dip Ed (Melb), Senior Law Reform Officer

Ainslie Sowden, BA (ANU)

seconded from Department of Administrative Services (1980-1981)

Vaughan D Thompson, LLB (Hons) (Adel), EDLP (Adel), Law Reform Officer

Antony D Young, BA, LLB (NSW), Senior Law Reform Officer

Principal Executive Officer

Barry Hunt, BA (Syd)

Library

Joanna Longley BA (CCAE)

Virginia Pursell, BA (NSW), Dip Lib (CCAE) (to 1986)

Librarian

Word processing

Anna Raso

Cheryl Nilson

Consultants to the Commission[1]

Mr KV Borick, Barrister (SA)

Acting Station Sergeant GS Brown, Australian Federal Police

Inspector P Duffy, Australian Federal Police

The Honourable Sir Richard Eggleston, former Chancellor, Monash University, Melbourne

The Honourable MT Justice HH Glass, New South Wales Court of Appeal

Mr C Hermes, former Chief Magistrate, Magistrates Court (ACT)

Mr D Heydon, Barrister, Sydney

Mr DA Jessop, Commonwealth Attorney-General's Department

Chief Superintendent J Kelly, Australian Federal Police

Mr Trevor Martin, QC, former Judge of the District Court, New South Wales and former Member of the New South Wales Law Reform Commission

Mr D Meagher, QC

The Honourable Mr Justice PE Nygh, Family Court of Australia

The Honourable Mr Justice IF Sheppard, Federal Court of Australia

Mr D Sturgess, Director of Public Prosecutions (Qld)

Mr C Tapper, Reader in Law, Oxford University

Dr D Thomson, Department of Psychology, Monash University

The Honourable Mr Justice F Vincent, Supreme Court of Victoria

Mr P Waight, Senior Lecturer in Law, Australian National University

Mr M Weinberg, QC Melbourne.

Special assistance

Mr Trevor Martin, QC

Michael Corrigan

Ruth Jones, New South Wales Law Reform Commission

Paul Gard, New South Wales Law Reform Commission

[1] The recommendations, statements of opinion and conclusions in this report are those of the members of the Law Reform Commission. They do not necessarily represent the views of consultants or of the organisations with which they are associated.

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Glossary

The following explanations may help readers not familiar with some legal terms:

Burden of proof. This refers to the obligation imposed on a party to establish a particular issue raised in legal proceedings. For example, in a murder trial, the Crown will have the obligation of establishing that the accused did the act which caused death and that he did so intentionally. On the other hand, if the accused wishes to argue that he was insane at the time the offence was committed, he or she will carry the obligation of establishing the fact. The Crown and the accused, respectively, have 'the burden of proof in relation to these issues.

Common law. The laws developed and explained by decisions of the courts.

Competence and compellability. These descriptions are applied to witnesses. A competent witness is one who is permitted by law to give evidence in proceedings. A compellable witness is a competent witness who can be compelled to give evidence when unwilling to do so.

Corroboration. Where evidence is given in a trial by children, by victims of sexual assault, or by accomplices of the accused, the law requires corroboration. This is evidence of other witnesses which confirms or supports that of the child, victim or accomplice. Corroboration is also required in other situations, for example, in trials for treason or perjury.

Doctrine of precedent. This requires a judicial officer to apply decisions of courts situated above him in the court structure of which he is a member.

Issue estoppel. This prevents parties relitigating issues decided in an earlier case between them.

Hearsay rule. This rule prevents a witness giving evidence of what he or she has heard others say. The rule applies, however, only where the purpose for giving the evidence is to prove the truth of the facts contained in such statements. It does not prevent evidence being given if the purpose is to establish that a statement was made - for example, the statement complained of in a defamation case.

Parol evidence rule. This rule prevents the parties to a written agreement, who intended that it should be the sole record of their agreement, presenting other evidence to the court in an attempt to alter, or add to, or contradict that written agreement.

Presumptions. These are conclusions or inferences that are drawn by the court from known facts.

Probative. Evidence is probative of a fact when it tends to prove that fact.

Res gestae. The doctrine of res gestae allows evidence to be led, among other things, of everything said and done in the course of the incident or transaction that is the subject of the trial.

Res judicata. When a decision has been given in a case, the subject matter of that case cannot be raised again in a later case between the same parties.

View. This is the inspection by the court of the place where the events in question in the trial took place.

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Summary

The Reference

Issues of uniformity and reform

An Evidence Act

The Evidence Bill - major recommendations

The future

The Reference

1. Program and progress. Under the terms of its Reference on the law of evidence, the Law Reform Commission is required to review the laws of evidence applying in federal courts [1] and the courts of the Territories [2] 'with a view to producing a wholly comprehensive law of evidence based on concepts appropriate to current conditions and anticipated requirements'. The Commission is also asked to report on:

(a) whether there should be uniformity, and if so to what extent, in the laws of evidence used in those courts; and

(b) the appropriate legislative means of reforming the laws of evidence and of allowing for a future change in individual jurisdictions should this be necessary.

2. The Commission's program for the reference was divided into two major exercises. The first was a review of the law of evidence. The second was the preparation of a report on whether and to what extent there should be uniformity in the law of evidence applied in the relevant courts and what reforms should be advanced. The results of the review of the law are summarised in an Interim Report. [3] It included the Commission's tentative conclusions that there should be uniform and comprehensive legislative reform of the law of evidence applying in federal and Territory courts. The Interim Report also included comprehensive draft legislation with which to test the feasibility of such legislation and proposed reforms. Extensive discussions of these issues, including public hearings, took place using the Interim Report as the focus for discussion.

Issues of uniformity and reform

3. Commission's view. Federal courts apply the law of evidence of the State or Territory in which they happen to be sitting. [4] The laws of evidence differ widely. The differences from jurisdiction to jurisdiction derive not only from differences in Evidence Acts but also from differences in the common law applied by the courts of the various States. At present there is uniformity between the courts of a State [5] and the federal courts when sitting in that State, not between federal courts sitting in different States. The national courts administering national legislation apply a different law of evidence depending on where they happen to be. The issue is whether, if there must be some disuniformity, it is better that there be uniformity between State and federal courts sitting in a particular State, or between all federal courts throughout Australia. The Commission is strongly in favour of the latter on grounds of convenience and principle. In addition, the law of evidence is badly in need of reform in all areas. The present law is the product of unsystematic statutory and judicial development. It is a highly complex body of law which is arcane even to most legal practitioners. It contains traps and pitfalls which are likely to leave the unrepresented litigant baffled, frustrated and defeated. There are also many areas of uncertainty in the law of evidence - areas on which definitive law is yet to be pronounced by the courts. The need for reform is also demonstrated by what happens in practice: the complexities are ignored, oversimplified versions of the law are applied and judges try to discourage use of its technicalities.

4. The inconsistencies, areas of uncertainty [6] and other deficiencies [7] are found in all areas of the laws of evidence. The Commission has concluded that a uniform comprehensive law of evidence is required for federal and Territory courts and that such a law should be enacted in legislation.

An Evidence Act

5. Interim Report legislation. Before making any final recommendations, the Commission formulated draft proposals to test the viability both of a uniform comprehensive Act and of particular reforms of the laws of evidence. To this end, it prepared draft legislation which was included in the Interim Report. [8] In working towards the draft legislation, the Commission followed a research program in which 16 research papers were produced. These were distributed widely to legal professional bodies, magistrates, academics involved in teaching evidence, federal and State judges and retired judges, the police, practitioners and other interested persons and organisations. Many submissions were received and considered. In addition regular meetings were held with consultants over a period of approximately two years to discuss the draft proposals. These proposals were then revised and brought together after further consultation into the one piece of legislation.

6. Response to Interim Report legislation. The interim legislation was the subject of extensive discussion, including discussion at a series of public hearings. Most submissions concerned particular proposals. There was widespread acceptance of the concept and feasibility of a comprehensive federal Evidence Act. [9] In the light of responses received, the Commission revised the interim legislation. It puts forward in this Report its final proposals.

7. Topics. The legislation deals with the following major topics.

(a) Witnesses: Competence and compellability of witnesses; sworn and unsworn evidence; the manner of giving evidence.

(b) The admission and exclusion of evidence: relevant evidence; documents; hearsay evidence; opinion evidence; admissions; judgments and convictions as evidence of the facts on which they are based; character and conduct evidence (including evidence relating to the credibility of witnesses); identification evidence; privileges; evidence excluded in the public interest; discretions to exclude evidence.

(c) Aspects of proof: matters of which proof is not required; proof of the contents of documents; facilitation of proof; standard of proof; corroboration; warnings to juries.

8. Policy framework. While much has been written in the past about the content of the laws of evidence, little has been written about the purposes that they should serve. The report [10] discusses the competing policy objectives and sets out the policy framework that has been adopted. Pre-eminence is given to the factfinding task of the courts. The credibility of the trial system ultimately depends on its performance in this area. So the proposals are directed primarily to enabling the parties to produce the probative evidence that is available to them. [11] Departures from this objective require justification - for example, balancing fairness, considerations of cost and time.

9. The different nature and objectives of the civil and criminal trial have been taken into account. Both are adversary systems, but the former is a system for resolving disputes and the latter is an accusatorial system in which the State accuses the defendant of breaking the law. Individual liberty and civil liberties are at stake in criminal trials. Although issues equal to or approaching the seriousness of those raised in criminal proceedings are raised at times in civil proceedings - for example, questions of fraud, bankruptcy, divorce and custody - the differences between the essential nature and purposes of civil and criminal proceedings still apply whatever the subject matter of the particular proceedings. A traditional concern of the criminal trial system has been to minimise the risk of wrongful conviction. This is reflected in existing law where different rules apply to the prosecution and the defence. In the light of these considerations, a more stringent approach has been taken to the admission of evidence against an accused person (as distinct from admission for the accused's benefit). The distinction between the prosecution and the accused has also been recognised in other areas (for example, the compellability of the accused, cross-examination of the accused, unsworn evidence by the accused, evidence of prior conduct and character). The effect the proposed reforms will have on the balance between prosecution and defence in criminal trials, has been borne in mind at all times.

10. The proposals also reflect a bias towards minimising judicial discretion particularly in those rules controlling the admissibility of evidence. Wherever possible, a proposal is presented in the form of a rule. Only where the relevant policy considerations prevent this have proposals in the form of discretions been advanced. A reasonable level of predictability is needed to enable parties to prepare for trial and assess their prospects of success. It must also be remembered that rules of evidence must often be applied by the courts without substantial time for reflection. At all times consideration has been given to the impact of change on the time and cost of litigation and on the time and cost of activities outside the courtroom. At all times clarity and simplicity has been the objective.

11. Reform proposals are advanced only in relation to criticisms of the law thought to be valid. An attempt has been made to reduce the significant level of uncertainty in existing law. Technicalities have been minimised so that the problem of the rules lying in wait for the unwary has been reduced. The legislation also significantly rationalises existing law. At the same time, anyone who is familiar with the existing law will find much in the legislation that is familiar and it will be possible for legal practitioners, judges and magistrates to proceed much as they have in the past. In a number of areas it may be thought that little has been changed. There are, however, several proposals which involve significant changes to the law. A selection is discussed in the paragraphs that follow.

The Evidence Bill - major recommendations

12. Rules of admissibility. The legislation sets out the rules to control the admissibility of evidence. The primary rule [12] is that if evidence is relevant, directly or indirectly to an issue in a case, it is admissible unless otherwise excluded. If it is not relevant, it is inadmissible. The legislation defines relevant evidence as evidence which, if it were accepted, could rationally affect the assessment of the probability of the existence of a fact in issue. It also articulates the discretion inherent in the different definitions of relevance presently used by including a residuary discretion to exclude evidence where its probative value is outweighed by the disadvantages of its admission - for example, time, cost, risk of confusion etc (the approach taken in the US Federal Rules.) The legislation sets out those other rules of admissibility which will operate to exclude evidence which is relevant to the issues in a case. They include, in criminal trials, the common law discretion to exclude prosecution evidence where its prejudicial effect outweighs its probative value is retained. The proposals build upon but rationalise and reform existing law.

(a) Hearsay evidence.[13] The common law rule excluding evidence of out of court statements and its exceptions have been the object of repeated criticism for many years. The difficulties created by the common law are reflected in the vast body of differing legislation which has attempted to address problems usually on an ad hoc basis. It, however, is additional to the common law exceptions. This has added to the 'crazy-quilt' effect of the law. Dissatisfaction with the law in the United Kingdom and in Commonwealth countries has, at last count, resulted in at least thirteen reports by law reform bodies in recent years. The proposal retains a rule of exclusion but provides new exceptions. The exceptions are divided into provisions relating to firsthand hearsay [14] and more remote hearsay. As to firsthand hearsay, the following applies:

(i) Civil proceedings.[15] In civil proceedings, where the maker of the out of court statement is unavailable, firsthand hearsay should be admissible on notice to the other parties. Where the maker of the statement is available, evidence should be admitted without calling the maker, notwithstanding the hearsay rule, if to do so would involve undue delay or expense or would not be reasonably practicable. Where the maker is or would be called as a witness, the hearsay evidence should be limited to that made at the time or shortly after the events referred to in it. [16]

(ii) Criminal proceedings. Hearsay evidence should not be admitted against an accused person unless it is the best evidence that is available and it can be shown to have reasonable guarantees of reliability. On the other hand, an accused should be allowed to lead hearsay when it is the best evidence he has available to him. So, where the maker of the statement is not available, the hearsay rule should not exclude firsthand hearsay led by the prosecution on notice provided it satisfies specified guarantees of reliability. [17] The rule should not exclude it when led by the accused if notice is given. Where the maker is available, he or she must be called and only statements made at or shortly after the relevant events should be admitted.

As to more remote hearsay, specific categories of evidence should be admissible notwithstanding the rule on the basis of their reliability or necessity, or on both grounds. Categories include government and commercial records, reputation as to family relationships and public rights, telecommunications, commercial labels and tags and evidence in interlocutory proceedings. [18] The rules relating to hearsay evidence and all other rules of admissibility are subject in both civil and criminal proceedings to the abovementioned exclusionary discretions which will enable the court to exclude evidence after comparing the probative value of the evidence and the disadvantages of receiving it. [19]

(b) Admissions and confessions. [20] The present test, in criminal trials, for the admissibility of admissions and confessions by an accused person is whether the admission or confession was made voluntarily. An examination of the decided cases, however, reveals uncertainty as to whether this test is directed towards maximising the probability of the truth of the admission or confession or whether it is directed to recognition of the right to silence and to ensuring compliance with the law and respect for civil liberties on the part of law enforcement agencies. The concept of voluntariness is unsatisfactory. The proposals address the above objectives of the voluntariness rule - maximising the probability of the truth of the admission and the preservation of the rights of the individual suspect - by advancing the following proposals.

(i) To be admissible, an admission must be shown not to have been influenced by violent, oppressive, inhuman or degrading conduct.

(ii) To be admissible, an admission made by a suspect must be shown to have been:

- made in circumstances unlikely to affect its truthfulness adversely; - recorded, or a subsequent confirmation recorded, or made while an independant person was present unless the alternatives were not reasonably practical; [21] and

- made after the suspect was cautioned.

(iii) A discretion is provided enabling the court to exclude evidence obtained illegally or improperly - developed from the present common law discretion.

The legislation also retains the discretion to exclude evidence of an admission or confession obtained in circumstances rendering it unfair to admit it in evidence against the accused (the 'Lee' discretion).

(c) Identification evidence.[22] Identification evidence is amongst the most unreliable and potentially dangerous categories of evidence. Unlike other unreliable or dangerous evidence, however, such as hearsay evidence or evidence of bad character, the courts have not developed any rules to control its admissibility. Instead, the courts have relied on giving warnings to juries as to the dangers of the evidence and on the general judicial discretion to exclude evidence where its prejudicial effect outweighs its probative value. The proposed legislation is developed from the Devlin Committee Report and the Australian Law Reform Commission's Report on Criminal Investigation. There are several important features to note.

(i) An exclusionary rule is created under which identification evidence will not be admissible unless an identification parade was held prior to the act of identification. This rule is subject to the exception that a parade need not be held where it would not have been reasonable to do so.

(ii) Evidence of identification by police photographs should not be admissible when it is led by the prosecution unless the photographs include those of people without criminal records or, where the accused is in custody, the photograph of the accused that was used was one taken after the accused was taken into custody.

(iii) Where the suspect is in custody, the evidence of a subsequent photo identification will not be admissible unless it was not reasonable to hold an identification parade.

(iv) Special provisions are included on the directions that should be given to juries and to impose an obligation to direct an acquittal of the accused where there are no special circumstances in relation to the identification and no other substantial evidence which implicates the accused.

(d) Privilege.[23] There are several rules which enable a person to prevent confidential communications being disclosed in court or which prevent such evidence being given. The proposed legislation preserves those privileges which exist in all jurisdictions with some modifications directed to removing deficiencies and addressing criticisms. One privilege that warrants specific mention in this brief summary is the privilege against self-incrimination. At common law, a witness can object to answering any question the answer to which may tend to incriminate him. This privilege has been subject to various modifications in different jurisdictions. In particular, in Western Australia, Tasmania and the ACT there is a certification procedure under which a judge may grant a certificate which either confers immunity from prosecution on the witness or renders any evidence that the witness may give inadmissible against him or her in any subsequent criminal proceeding. In recent years the issue has been raised as to whether the privilege should be abolished. [24] The conclusion reached is that the privilege should be retained as a protection of the individual's personal freedom. It is, however, recognised that the privilege can deprive the courts of information relevant to the proceedings and thus make the fact finding task more difficult. The Commission has formed the view that the proper solution in light of the competing interests is to retain the privilege in a modified form. A modified version of the certification procedure operating in the ACT is proposed. Under this proposal a witness may claim the privilege but if he or she is prepared to testify, the judge may issue a certificate which will prevent the evidence being admitted against the witness in subsequent legal proceedings. Unlike the ACT provision, the certificate will only be issued if the witness consents to the procedure. The decision will be for the witness, not for the judge.

The report also proposes the continuation of a client lawyer privilege broadly along traditional lines. However, it is proposed that the communications to be protected must be made in the context of a professional relationship between the lawyer and client or between the client's lawyers and for the dominant purpose of obtaining or giving legal advice or assistance. The proposals have been framed in such a way as to ensure that evidence about concluded conveyancing and other property transactions would not be excluded. In addition, protection is given to communications between the lawyer or the client and third parties for the dominant purpose of obtaining or giving legal advice and assistance related to pending or contemplated litigation.

A major issue in the area of privilege is whether privileges should be extended to relationships other than those presently protected. In particular, calls for such an extension have come from doctors, clergymen, [25] those involved in peer review, psychiatrists, psychologists, social workers and journalists. Relationships in which such people are professionally involved proceed on the basis that confidentiality will be maintained. A lack of confidentiality, for example, could stand in the way of effective therapy by psychiatrists, psychologists, social workers and school counsellors. In addition, it has been argued that the free dissemination of news could be hindered by the absence of protection of the journalist-source relationship. The competing public interests applicable to such confidential professional relationships, however, support a discretion to protect confidential communications in appropriate cases rather than a privilege in all cases. In none of them is litigation always or even very frequently a likely eventuality. Further, complete confidentiality is not always a prerequisite to the formation or continuance of the relationship.

(e) Opinion evidence.[26] There has been much publicity of problems associated with the tendering of expert opinion testimony in the courts. Most of these problems are associated with lack of pre-trial disclosure of information and lack of resources available to accused persons - matters outside the reference. It is proposed, however, that the courts be given a power to make rules of court dealings with pre-trial exchange of the reports of experts. The proposals concern themselves with the admissibility of both lay and expert opinion testimony. They rationalise the existing law. Among other things the proposals abolish the rules preventing an expert witness giving evidence on matters of common knowledge and expressing an opinion on an issue that is an ultimate issue in the trial. The law in these areas is extremely confused. It operates on occasions to prevent courts receiving evidence which could be of assistance.

(f) Evidence of character and conduct.[27] The legislation proposed by the report is similar to the existing law in most areas. It does, however, attempt to give more guidance, particularly in the area of the admissibility of evidence of the accused's prior misconduct in criminal trials and of evidence of the conduct of other persons, whether in civil or criminal proceedings. Under the legislation, evidence of reputation, including sexual reputation, will generally not be admissible. An exception is provided enabling the accused to lead evidence of the accused's good character.

(g) Evidence relevant to credibility.[28] Proposals are also advanced about evidence relevant to the credibility of witnesses. They tighten the control over cross-examination of witnesses on matters going only to their credibility but, having done so, relax slightly the rule that the cross-examiner is bound by the answers received. The proposal, in this regard, adopts the existing categories under which a witness' denials may be rebutted but adds a further category: knowingly or recklessly making a false representation at a time when under an obligation imposed by law to tell the truth. The formulation of the proposals in this area has been influenced by psychological research which indicates that, for the purpose of predicting behaviour, abstract character traits on their own are extremely poor indicators. What is required is information on the behaviour of the person concerned in similar circumstances. The research also shows that we tend to explain the behaviour of others (but not our own) on the basis of character traits which we assume continue to operate regardless of the context and that if we are aware of one bad character trait, we tend to attribute other bad traits to the particular individual. As to the cross-examination of an accused with a view to attacking his or her credibility, an approach similar to that in New South Wales is adopted. The legislation provides that apart from questions directed to such things as motive to be untruthful, physical or mental disabilities or prior inconsistent statements, the accused may, by leave, be cross-examined by the prosecution on matters relevant to credibility only where the accused has given evidence tending to prove that a witness called by the prosecution is untruthful, where the purpose of adducing that evidence was solely or mainly to impugn the credibility of that witness and that evidence has been admitted.

13. Competence and compellability.[29] In most jurisdictions, the spouse of an accused is not compellable as a witness for the prosecution except in relation to trials for certain specified offences. To overcome the unsatisfactory features of this approach, an alternative approach has been taken in recent years in Victoria and South Australia under which the spouse of the accused is a compellable witness for the prosecution but may seek exemption from the trial judge. This approach offers the best means of ensuring the achievement of the underlying policy objectives of protection of the family unit and the avoidance of undue hardship to the witness. The proposal extends the right to seek exemption to parents and children of the accused (as in the Victorian and South Australian legislation) and to the de facto spouse of the accused (as in the South Australian legislation). Other provisions deal with the competence and compellability of the accused and other witnesses.

14. Sworn and unsworn evidence.[30] The Commission advocates application of the option presently available in the Federal Court and in some States under which the witness chooses whether to swear a religious oath or make an affirmation. The Commission has also considered the right of the accused to make an unsworn statement. This right was originally provided at the time when the accused was unable to give sworn evidence. That has not been the case for many years. The right to make an unsworn statement has come under frequent attack and has been abolished in Queensland, Western Australia, the Northern Territory and in South Australia. In Victoria, South Australia and New South Wales, however, reports in recent years have recommended its retention. [31] The Commission is of the view that the right should be retained as there is still a need for such a right for some accused persons. The legislation, however, addresses a number of the criticisms that may properly be made about the law and about abuses that have occurred in the exercise of the right to make unsworn statements. [32]

15. Interpreters.[33] The existing law places the onus on a person wanting to use an interpreter to persuade the court that an interpreter is needed. There has often been a reluctance on the part of the courts to allow interpreters to be used. This reluctance reflects in part a misunderstanding of the processes of interpretation. The proposal reverses the onus under present law, enabling a witness to give evidence through an interpreter unless the court otherwise orders.

16. Secondary evidence of documents.[34] At common law a party wishing to prove the contents of a document must tender it unless it is shown that the document cannot be produced. This applies regardless of the importance of a document in the case in question and whether there is any genuine dispute about it. Even a party in possession of the document can object to the other party tendering secondary evidence of it where the tenderer did not make any formal request to have the original document made available. Evidence is also required to authenticate any copy of the document regardless of its importance, the obvious authenticity of the copy and whether there is any genuine need to have authenticating evidence. The application of common law rules has given rise to difficulties in proving the contents of writings contained in modern photocopies and microfilm. An attempt was made in the 1960s to enact uniform legislation to deal with modern techniques of reproducing documents. This legislation, regrettably, is so complex that few organisations have attempted to comply with it. The legislative proposals in this report attempt to rationalise the common law and the legislation. Technicalities have been removed and special provisions are included to enable government and commercial records kept in microfilm and other copy forms to be proved by production of such copy records or prints made from them notwithstanding the availability of the original document. Provisions are also advanced to facilitate the authentication of copies and, in particular, copies of commercial and government records.

17. Corroboration.[35] It is proposed to abolish the existing complex, technical, artificial, misleading and anomalous rules on the corroboration of evidence of witnesses. In their place is put forward a regime under which the trial judge must consider whether evidence comes within any of the broad categories of evidence listed in the legislation and, if so, whether it may be unreliable or the probative value of the evidence may be misestimated. If the judge considers the evidence to be such, he is obliged, unless there is a good reason for not doing so, to warn the jury as to the dangers attaching to that evidence. However, be will not be obliged to direct the jury to look for evidence independent of the suspect's evidence to corroborate it; such a warning can be confusing and misleading. It distracts attention from the problem that the evidence in question may be unreliable or liable to misestimation. The fact that there is other evidence that corroborates it does not alter that fact and does not make the evidence more reliable or less liable to misestimation.

18. Other proposals. The legislation also includes proposals to:

abolish the rule that evidence of a conviction may not be received in a civil trial when tendered as evidence of the facts on which it was based; [36]

relax the rules controlling the admissibility of admissions by persons employed or acting for a party; [37]

extend the power of a party to challenge the evidence of a witness called by that party, at present limited to witnesses who are 'hostile', to ensure that all evidence placed before the court will have been tested by at least one of the parties to the proceedings; [38]

rationalise and simplify the rules facilitating the authentication of documents; [39]

permit the court in deciding whether a document is admissible, to draw inferences from a perusal of the document; [40] and

abolish the rule under which a party calling for and inspecting a document in the possession of the other party can be compelled to tender the document in evidence. [41]

There are further proposals that:

a 'view' outside the courtroom may be used as evidence; [42]

formal proof not be required of proclamations and regulations or of facts which, while not matters of common knowledge, are not reasonably open to dispute; [43] and

the relevant courts in civil trials be given a power to dispense with the rules of evidence. Such a power is already enjoyed by several courts including the Federal Court. [44]

The future

19. Monitoring.The topics covered in the legislation are of far-reaching importance to the conduct of criminal and civil trials in federal and Territory courts. Proposals such as those relating to privileges, admissions and confessions, and identification evidence, are of considerable significance to the investigation of crimes and the protection of civil liberties. There is need to monitor the operation of the proposals in practice to ensure that future developments are covered and, if not, changes made quickly in response.

[1] The High Court, the Federal Court and the Family Court.

[2] The Supreme Court and Courts of Petty Sessions of the Australian Capital Territory, Norfolk Island, Christmas Island and Cocos (Keeling) Island,

[3] ALRC 26.

[4] Judiciary Act 1903 (Cth) s 79, s 80 .

[5] The same issues arise in relation to federal courts, Territory courts and the laws of evidence.

[6] For inconsistencies and uncertainties, see ALRC 26, vol I, para 94-212 for a selection and ALRC 26, vol II, Appendix C for a more detailed account. See also Appendix C to this Report.

[7] See ALRC 26, vol I, para 236-508 and Appendix C to this Report.

[8] ALRC 26, vol II, Appendix A.

[9] See para 20-6 below for discussion of the issues and responses. There was some criticism - see below para 22, 24.

[10] Para 27-47 below.See also ALRC 26, para 11-18 and 48-89; ALRC IP3.

[11] UKLRC 13.

[12] See para 122-5.

[13] See para 126-47. One member of the Commission holds a dissenting view on the firsthand hearsay proposal. He favours codification of the law as it applies to firsthand hearsay (see below, para 147).

[14] Firsthand hearsay evidence is evidence of representations of fact made by persons with personal knowledge of the facts stated or persons who might reasonably be supposed to have such personal knowledge. More remote hearsay evidence is described in the text as secondhand hearsay evidence and is evidence of representations of fact made by persons who do not have personal knowledge of the facts.

[15] These proposals are developed from UKLRC 13 and the English Civil Evidence Act 1968.

[16] It is the 'best available' evidence and to admit later statements could significantly add to the time and cost of trials without any matching benefit.

[17] These proposals are developed from and rationalise existing exceptions.

[18] These proposals are developed from existing Commonwealth and State legislation and the common law.

[19] Above para 11.

[20] See para 152-69.

[21] This proposal is also directed to obtaining reliable evidence of the making of the admission and the circumstances in which it was made.

[22] See para 182-92.

[23] See para 193-225.

[24] For discussion see ALRC 26, vol I, para 852ff.

[25] Privileges exist in the Northern Territory, Tasmania and Victoria to protect the doctor-patient and priest-penitent relationships. One member of the Commission favours a privilege for confidential communications between parishioner and minister of religion. (See below para 206).

[26] See para 148-51.

[27] See para 172-8.

[28] See para 179-81.

[29] See para 64-84.

[30] See para 85-106.

[31] VLR Commissioner 11; SA Select Committee report; VLRC 2; NSWLRC 45.

[32] One member of the Commissioner dissents, holding the view that the right should be abolished.

[33] See para 111(d), 112(a).

[34] See para 229-31.

[35] See para 237-8.

[36] See para 170-1.

[37] See para 152.

[38] See para 113-4.

[39] See para 232-4.

[40] See para 232(a).

[41] See para 111(g).

[42] See para 242-3.

[43] See para 227-8.

[44] See para 246-7.

[Return to Top]

Summary of recommendations

Uniformity and reform

Witnesses - physical and psychological competence

Witnesses - legal competence and compellability

Sworn evidence

Unsworn evidence of accuseds

Manner of presenting evidence

Rules of admissibility - relevance

Rules of admissibility - hearsay evidence

Rules of admissibility - opinion evidence

Rules of admissibility - admissions and confessions

Rules of admissibility - evidence of previous court decisions

Rules of admissibility - evidence of character and conduct

Rules of admissibility - identification evidence

Rules of admissibility - privileges

Rules of admissibility - discretions to exclude

Aspects of proof

Safeguards

Miscellaneous

Uniformity and reform

1. There should be a comprehensive uniform law of evidence applying in proceedings in federal and Territory courts (para 25-6 Bill, cl 11(1)). It should reform existing law. It should not apply to appeals to Federal Courts from courts of a State or the Northern Territory, nor override specific Commonwealth or Territory legislation such as the competence and compellability of spouses provisions in the Family Law Act 1975 (Cth) (para 55; Bill, cl 14-5). Parliamentary privilege should be specifically preserved (para224; Bill, cl 16). Consequential amendments should be made to existing legislation (Evidence (Miscellaneous Amendments) Bill).

Witnesses - physical and psychological competence

2. All witnesses should be regarded as psychologically and physically competent unless the contrary is shown (para 65; Bill, cl 18, 19(4)). The present test of psychological competence (an understanding of the nature and consequences of the oath) should be replaced by a requirement that the witness understand the obligation to give truthful answers and be able to understand and respond rationally to questions. It should be open to a court, at any time during a trial, to rule that a witness should not give evidence if it appears that the witness does not meet these requirements. This power should be exercisable generally, and also in relation to particular evidence (Bill, cl 19(1)-(2)). The court should be able to inform itself as it thinks fit (Bill, cl 19(6)). Where a witness dies or becomes unfit to continue, the evidence he or she has given should not become in admissible only for that reason (Bill, cl 19(5)). It should be made clear that a witness's physical disabilities do not affect his or her competence unless they cannot be overcome or cannot be overcome without undue cost or delay (Bill, cl 19(3)).

Witnesses - legal competence and compellability

3. General proposal. With the following exceptions, all persons should be competent and Compellable witnesses in both civil and criminal proceedings (para 66; Bill, cl 18).

4. All trials - Heads of State and Parliamentarians. The Sovereign, the Governor-General, State Governors and foreign sovereigns should remain non-compellable, as should Lieutenant-Governors and Administrators of States and Territories and members of legislatures while the legislatures (including committees) are sitting (para 67; Bill, cl20).

5. All trials - Judges and jurors. Judges and Jurors should not be competent to give evidence in a trial in which they are acting as judge or juror. Judges should not be compellable to give evidence in other proceedings about proceedings in which they were involved, unless the leave of the trial judge in the other proceedings is given (para 68; Bill, cl 21).

6. Criminal trials - accused. In a criminal trial, an accused should not be competent to give evidence for the prosecution and should not be compellable to give evidence as a witness for himself or herself or for a co-accused (para 70; Bill, cl 22(2), (3)). The trial judge should be able to instruct the jury as to the inferences they may, and may not, draw from the accused's failure to give evidence. Prosecutorial comment, on the other hand, should not be permitted (para 73; Bill, cl 23).

7. Criminal trial - person charged with related offence. In a criminal trial, a person charged with a related offence should not be compellable to give evidence and should not be competent to give evidence for the prosecution unless the trial judge gives permission. Matters to be considered by the trial judge should include whether the person has or appears to have a motive to lie and whether it is practicable to complete or terminate the proceedings against the person before he or she gives evidence (para 76; Bill, cl 22(3)-(5)).

8. Criminal trials - family of the accused. In a criminal trial, the spouse of an accused (including a de facto spouse but not a former spouse) and the accused's parents and children should be able to be excused by the court from giving evidence for the prosecution pursuant to a guided discretion. Applications for exemption should be dealt with in the absence of the jury and, once determined, should not be the subject of comment by the prosecution (para 82-3; Bill, cl 24).

9. Civil trials - spouses. In a civil trial (other than those relating to custody, guardianship or wardship) a spouse (but not a former spouse or a de facto spouse) should not be compellable to give evidence of marital communications (para 78; Bill, cl 25). This proposal should not apply in courts exercising jurisdiction under the Family Law Act 1975 (Cth).

10. Witness to be advised. Where it appears that a witness may be able to seek an exemption, the court should have to satisfy itself that the witness is aware of his or her right to do so (para 84; Bill, cl 22(4), 24(5)).

Sworn evidence

11. Oaths and affirmations. There should continue to be a requirement that witnesses be sworn and the religious oath should be retained, but witnesses should have the option of affirming (para 85; Bill cl 26(1)-(2)). Persons called merely to produce documents need not be sworn. The method of taking the oath or making an affirmation should be simplified, including by prescribing a form of oath and affirmation. Failure to comply with the formal requirements, however, should not invalidate the oath or affirmation (Bill, cl 26(5)). Again, the trial judge should have to advise witnesses of their rights (Bill, cl 29).

Unsworn evidence of accuseds

12. Retention of right. An accused should have the right to make an unsworn statement (including by reading a prepared written statement) (para 87, 94; Bill, cl 27).

13. Statement to be evidence. An unsworn statement should be treated as evidence and subject to the rules of evidence (including rules as to admissibility). Reliance should be placed on the right of the prosecution to object to inadmissible evidence and the power of the judge to control the proceedings. To assist, an express power should be included to enable the judge to require production of the written statement or notes, if any, that the accused proposes to use (para 95(b); Bill, cl 27(5)). The accused should not be liable to cross-examination on an unsworn statement, but the perjury provisions of the Crimes Act 1914 (Cth) should apply (Bill, cl 27(8), (11)). Where an unsworn statement has been given, sworn evidence should not be allowed except with the court's permission and, if given, the protection against cross-examination should be removed, including cross-examination on matters referred to in the unsworn statement (Bill, cl 27(2), (8), (10)). Evidence relevant to the credibility of an accused who makes an unsworn statement should be admissible to the like extent as it would be against an accused who gives sworn evidence (Bill, cl 98).

14. Making unsworn statements. An accused who is legally represented should be allowed legal advice in preparing an unsworn statement and assistance in making it. If the accused is unable to read a written statement, his or her lawyer, with leave, should be allowed to read it. With leave, the lawyer should also be allowed to prompt an accused if he or she has omitted anything. (para 99(d); Bill, cl 27(4)-(7)). The accused should be advised of his or her rights in the presence of the jury (Bill, cl 29). The unsworn statement of one accused should not be capable of being used as evidence for or against another co-accused (Bill, cl 27(8)-(9)). The trial judge should be able to comment on the fact that the accused did not give sworn evidence, but not so as to suggest that the giving of unsworn evidence is due to an awareness of guilt or that unsworn evidence is necessarily inferior to sworn and cross-examined evidence. The prosecution should not be able so to comment (para 97; Bill, cl 28).

Manner of presenting evidence

15. Recommendations applicable generally. The following proposals should apply generally to the questioning of witnesses.

(a) Exhaustive statement. An exhaustive statement of rules controlling the manner of presenting evidence should be provided. Subject to the proposals set out here, the court, in its discretion, should have the power to make such orders as are just in relation to the way in which witnesses may be questioned, the production of documents, kinds of questioning and the order in which parties may question witnesses (para 108; Bill, cl 30).

(b) Right to question. It should be made clear that a party may question a witness called by another party even when that witness has not given evidence that affects the case of the former party (para 111-2; Bill, cl 31).

(c) Order of questioning. Unless the court orders otherwise, examination in chief should be completed before cross-examination and, once all parties have been given the opportunity to cross-examine, re-examination may occur (para 111-2; Bill, cl 5, 32).

(d) Narration. The court should be able to encourage the giving of evidence in narrative form (para 111-2; Bill, cl 33(2)).

(e) Interpreters. A witness should be entitled to an interpreter unless the court orders otherwise. Interpreters should be able to be used for part only of the evidence of a witness. The trial judge should be able to stop the use of an interpreter at any time (para 111(d); 112(a); Bill, cl 34).

(f) Attempts to revive memory in court. Leave of the court should continue to be necessary before the memory of a witness may be revived by referring to a document (para 111(e), (f), 112(b); cl 36(1)). Matters for court to consider should be set out (cl 36(2); 148(2)). The witness should be allowed to read aloud a document so used, subject to the leave of the court (cl 36(3)). The court should have the power to give directions for the production to the parties of a document so used (para 111(e), 112(h); Bill, cl 36, 148).

(g) Attempts to revive memory out of court. The trial judge should have a discretion to require production of any document or thing which was used out of court to revive a witness' memory, whether successfully so used or not, unless protected by client legal privilege. If, without reasonable excuse, the document or thing is not produced, the judge should be able to refuse to admit the evidence (para 111(f), 112(b); Bill, cl 37).

(h) Rule in Walker v Walker. The rule that a party calling for and inspecting a document can be required to tender it should be abolished (para 111-2; Bill, cl39).

16. Recommendation applicable in examination in chief and re-examination. The following proposals should apply to the questioning of witnesses by the party that called them.

(a) Leading questions. Parties should be able to put leading questions to witnesses they have called only in relation to introductory matters and matters not in dispute. Otherwise, leave should be required (para 113-4; Bill, cl 40).

(b) Unfavourable witnesses. The law relating to 'hostile' witness should be abolished. Instead, a party should be able to question fully such a witness as if in cross-examination, not only on unfavourable evidence and any prior statement but also as to credibility and, in re-examination, to tender prior inconsistent statements of the witness. The leave of the court should be required. The same regime should apply to witnesses who happen to 'forget' some evidence in examination in chief or re-examination. The party wishing to challenge the witness should have to seek leave at the earliest opportunity and, unless the court directs otherwise, so question the witnesses before the other parties have had the opportunity to do so. Where such a direction is given, the order of questioning of the witness should be under the direction of the court (para113-4; Bill, cl 41).

(c) Limits on re-examination. Re-examination should be limited to matters arising in cross-examination unless leave is given (para 118; Bill, cl 48).

17. Recommendations applicable in cross-examination. The following proposals apply to the cross-questioning of witnesses by parties other than those that called them.

(a) Witness called by mistake. A party should be free to withdraw a witness called by mistake, provided that no evidence in chief has been given (para 115-6, Bill, cl43).

(b) Improper questions. The judge should be able to disallow misleading, oppressive, repetitive, hectoring or abusive questions, or to inform the witness that the question need not be answered. In so doing, the judge should have regard to the personal characteristics of the witness (para 115-6(a); Bill, cl 44).

(c) Leading questions. A party should be able to put leading questions in crossexamination unless the judge directs otherwise (para 115-6(b); Bill, cl 45).

(d) Cross-examination of witness on prior statements. Cross-examination on a prior inconsistent statement of a witness should be allowed. Before doing so, it should not be necessary to give complete details of the statement to the witness (Bill, cl46(1)). Details should, however, have to be given to the witness before evidence of the statement is given by other witnesses (para 115-6(c); Bill, cl46(2)).

(e) Cross-examination on prior statements of other persons. No crossexamination should be permitted on statements that have not been and will not be admitted in evidence. Where a written statement is not in evidence and cannot or will not be admitted in evidence, cross-examination should only be allowed in the following way: the witness should be shown the document, asked to read it and state whether he or she still adheres to the evidence given (para 115-6(d); Bill, cl47(3)).

(f) Power to order production of documents. The judge should be able to require production of any document used in cross-examination, examine it, give directions as to its use and, subject to the rules of admissibility, admit it in evidence (para115-6; Bill, cl 48(1)-(2)).

(g) Cross-examination on documents. It should be specifically provided that a cross-examiner is not obliged to tender a document used in crossexamination (para115-6; Bill, cl 48(3)).

(h) Rule in Browne v Dunn. A cross-examiner should be required to put to each of the opponent's witnesses so much of the substance of his own case as concerns that witness or on which that witness could give evidence. Non-compliance should not result in the exclusion of evidence but the judge should have a discretion to permit recall of the witness (para 115-6; Bill, cl 49).

Rules of admissibility - relevance

18. Relevance. The primary rule should be that relevant evidence is admissible unless specifically excluded by an exclusionary rule and that irrelevant evidence is not admissible (para 125; Bill, cl 51).

19. Definition. 'Relevance' should be defined in terms of capability of affecting the assessment of the probabilities (para 125; Bill, cl 50).

20. Discretion. The judge should have an express discretion to exclude evidence if the advantages of admitting the evidence are substantially outweighed by the risk of unfair prejudice, the risk of the court being misled (for example, by incorrectly assessing the weight of the evidence) by the risk of confusion and of undue waste of time (para 125; Bill, cl 117).

21. Provisional relevance. The court should be able to admit evidence provisionally subject to additional evidence being admitted to enable the relevance of the evidence to be determined (para 125; Bill, cl 52).

22. Miscellaneous. In determining the relevance of documents or things, the court should be expressly authorised to examine them and to draw any reasonable inference from them, including inferences as to their authenticity or identity (para 125; Bill, cl 53). The standard of proof, for the purpose of determining provisional admissibility, should in general be that it is reasonably open to make the other finding (para 123, 125; Bill, cl52). Specific provision should be made to ensure that evidence of statements made by an alleged conspirator and tendered as evidence of acts done pursuant to the alleged conspiracy continue to be admissible against all the alleged conspirators (para125; Bill, cl 52(2)),

Rules of admissibility - hearsay evidence

23. Exclusion of hearsay evidence. There should be a primary rule of exclusion of hearsay evidence (para 126, 142; Bill, cl 54(1)), which should be defined as evidence of a representation made out of court to prove the existence of facts intended to be asserted in it. The definition should cover representations in the form of oral or written statements or conduct (para 126, 142; Bill, cl 54(1)). Where evidence has been admitted for other purposes (for example, to prove that a representation was made), it should be able to be used to prove the facts asserted in it (para 126, 145; Bill, cl54(3)). A number of exceptions to the general rule of exclusion should be provided, however, for firsthand hearsay evidence that is, evidence given by a person who heard or saw the representation made by a person who witnessed the event in question (Bill cl 55(1)) and for more remote hearsay. As to firsthand hearsay, separate proposals should be advanced for civil and criminal proceedings.

24. Firsthand hearsay in civil proceedings. In civil proceedings, if firsthand hearsay evidence is the best evidence that a party has available to it, or the cost of calling direct evidence is not warranted, the exclusionary rule should not apply (para 127, 142).

Maker not available. Where the maker of the out of court representation is not available, the hearsay rule should not exclude the evidence of the representation by a person who saw or heard it if notice is given (para 127; Bill, cl 56, 60). The maker should be regarded as being unavailable if legally incompetent, not permitted by law to give the evidence, dead, cannot be identified or found after reasonable efforts, or resists all reasonable steps to compel the giving of the evidence (Bill, cl 7(1)). The proposal should also apply to representations in a document by a person about events witnessed by that person and representations in the document connected with them.

Maker available. Where the maker is available, the evidence should be admissible without calling the maker notwithstanding the hearsay rule if notice is given to the other party and no objection is taken. Where the maker is called as a witness, the hearsay evidence should be limited to evidence of representations made at or about the time of the event to which they relate (para 127, 143(c); Bill, cl 57(2)-(3), 60). Where the representation is contained in a document, it should not be possible to tender the document until the conclusion of the evidence in chief of the witness giving evidence of it unless the court gives leave (Bill, cl 57(4)). The recommended reforms of discovery, and the other safeguards set out below, should apply.

Notice, where required, should include the substance of the proposed evidence and notice of all other relevant representations (para 127, 143(e)). The court should be able to relieve the parties of the consequences of non-compliance with the notice requirements (Bill, cl 60(2)). Notice in affidavits should be permitted.

25. Firsthand hearsay in criminal proceedings. Different consideration should apply in the criminal trial.

Maker unavailable. Where the maker of the out of court representation is not available, the rule against hearsay should be relaxed in favour of the prosecution only where there are reasonable guarantees of reliability: the person who made it was under a duty to make it, it was made at or about the time of the event it relates to and in such circumstances that it is unlikely to be a fabrication, it was made in the course of giving sworn evidence that was open to cross-examination or it was against the interests of the person who made it. Notice should be required (para 128, 142-3(d); Bill, cl 58(2), 60). In general, the accused should be able to have firsthand hearsay evidence admitted when it is the best evidence be or she has available. Where the maker of the representation is not available, the hearsay rule should not exclude the evidence provided notice is given (para 128, 143(d), Bill, cl 58(5), 60)). Where hearsay evidence has been admitted under this exception, the prosecution should be able to meet such evidence by firsthand hearsay evidence (Bill, cl 58(6)).

Maker available. Where the maker is available, he or she should be called, and only statements made at or about the time of the events concerned should be admitted (para 128, 142; Bill, cl 59(1)). Proofs of evidence of prosecution witnesses, however, should not be rendered admissible, although evidence relevant to identification should be (Bill, cl 59(2)). Where the representation is contained in a document, it should not be possible to tender it until the conclusion of the evidence in chief of the witness giving evidence unless the court gives leave (Bill, cl 59(3)).

26. Notice. Notice, where required, should include the substance of all other relevant representations. Notice in affidavits should be permitted (para 128, 143(e)). The court should be able to relieve the parties of the consequences of non-compliance with the notice requirements (Bill, cl 60(2)).

27. More remote hearsay. In general, the rule against hearsay should not be relaxed for secondhand or more remote hearsay unless it comes within a limited number of categories chosen on the basis of reliability and necessity (para 129):

business and government records containing representations made or recorded in the course of or for the purposes of a business (Bill, cl 61(1)). Representations prepared or obtained in connection with legal proceedings, or in the course of the investigation of a criminal offence, should not be admissible under this provision (Bill, cl 61(2))

trade labels, tags and inscriptions on goods and evidence of the facts stated in them, for example, place of origin and identity of manufacturer (Bill, cl 62)

telecommunications as evidence of the identity of the sender and recipient and the date, time and place of sending (Bill, cl 63)

evidence of reputation as to marriage, family history or relationships, and public or general rights. When adduced by the prosecution the rule should be relaxed only where adduced in rebuttal of such reputation evidence (Bill, cl 64)

in interlocutory proceedings, provided the source of the information referred to is identified (para 143(f); Bill, cl 65).

28. Credibility of maker.The rule preventing the admission of evidence relevant to the credibility of the maker of the representation who does not give evidence should be relaxed for evidence about matters on which the maker could have been cross-examined if called as a witness (para 131(c); Bill, cl 100, 142).

29. Proof of conditions. It should be possible to prove the conditions precedent required by these provisions by affidavit evidence or, in the case of government records, by written statement, made by a responsible officer (para 241(b), 242; Bill, cl 142). Proposals to protect parties against whom the evidence is led are set out below.

Rules of admissibility - opinion evidence

30. General. In general, evidence of opinion should not be admissible to prove the existence of a fact as to the existence of which the opinion is expressed. If the evidence is otherwise relevant, however, it should be able to be used for that purpose (para 148, 151; Bill, cl 66). The rules excluding evidence of opinion about matters of common knowledge and about ultimate issues should be abolished (para148, 151; Bill, cl 69).

31. Lay opinion. There should be an exception for lay opinion evidence, if based on the personal perception of the witness and necessary for an adequate account of his or her perceptions (para 148, 151; Bill, cl 67).

32. Expert opinion. There should be an exception for opinion evidence of an expert based wholly or substantially on that person's expertise (para 150-1(a), (b); Bill, cl 68). 'Expert' should be defined as a person who 'has specialised knowledge based on the person's training, study or experience': (para 151(b); Bill, cl 68). There should be no requirement that an expert's opinion be related to a recognised field of expertise or result from the application of theories or techniques accepted in that field (para 148, 151). The relevant courts should be empowered to make rules for the exchange of the reports of experts and the consequences of non-compliance with those rules (para 150); Bill, cl149(2), (3).

Rules of admissibility - admissions and confessions

33. General recommendations. An 'admission' should be defined as an out of court representation by a party which is adverse to that party's interests in the outcome of the proceedings (para 152-3; Bill, cl 3, definition of 'admission'). The hearsay and opinion rules should not prevent the admission or use of evidence of an admission (para 152-3; Bill, cl 71(1)). The fact that a person made an admission in one legal capacity and is sued in another legal capacity in the proceedings in question should not affect the admissibility of evidence of the admission in those proceedings (para152(a)-3; Bill, cl 3, definition of 'admission'). Representations connected with and made contemporaneously with or partly before or after the admission should also be admissible as part of the admission (para 152(b)-3; Bill, cl 71(1)(b)). A representation by a third party should be taken as an admission by a party if

there is authority from the party to speak on the matter

the person who made the statement purported or appeared to be an agent or employee of the party and purported or appeared to have authority within the area to which the statement related or

the representation was made to further a purpose shared by the person and party (para 152(c)-3; Bill, cl 76).

An admission, and the statement of which it forms part, should not be admissible against a co-party, but a co-party should be able to use an admission that is already in evidence, subject to the limitation that statements connected to the admissions should also be admissible in relation to the co-party's case, even though they may be unfavourable to the co-party (para 152(d)-3; Bill, cl 71(2)-(3)).

34. Violence and admissions. Evidence of an admission should be excluded where it was influenced by violence to any person. It should not be necessary to establish a causal link between the violence and the admission (para 154(a), Bill, cl 72).

35. Illegally and improperly obtained admissions. The proposed discretion to exclude illegally and improperly obtained evidence (see below, recommendation 66; para 154(b), 164(a); Bill, cl 119) should apply to admissions.

36. Criminal trials - circumstances of making. In a criminal trial, the court should have to be satisfied on the balance of probabilities that the admission was made in circumstances that were not likely to affect its truth adversely, taking into account all the circumstances, including the characteristics of the person making the admission (para154(d); Bill, cl, 73(2)). It should be expressly provided that evidence as to the truth or otherwise of the admission is not relevant (para 160(a); Bill, cl 73(3)).

37. Criminal trials - reliability of evidence of making. To ensure that reliable evidence of the making of an admission is available, evidence of admissions made in the course of questioning a suspect by law enforcement agencies should be inadmissible unless a recording is available to the court of the questioning and admission. Alternatively, if it was not reasonably practicable to make such a recording, a recording in which the suspect confirms that the admission was made should be available. As a further alternative, evidence of the admission should be inadmissible unless a lawyer acting for the suspect or an independent person chosen by the suspect is present. Finally, the exclusionary rule should not apply where it was not reasonably practicable to do either of these (para 154(c), 163-4; Bill, cl 74).

38. Cautioning suspects. In a criminal trial, evidence of an admission made by a suspect should not be admissible unless, before the admission was made, the suspect received a caution (para 161, Bill, cl 74(4)).

39. Criminal trials - unfairness discretion. In a criminal trial, the court should have a discretion to exclude evidence of an admission obtained in circumstances that would render it unfair to admit it in evidence against the accused (para 160(b); Bill, cl 79).

40. Criminal trial - silence of accused. It should not be permissible to draw inferences adverse to the accused from the silence of the accused in response to questioning by anyone whose duties include law enforcement (para 165-9; Bill, cl 78).

41. Criminal trials - signed admission. The written record of an admission should only be admissible as evidence of the admission if it is adopted by the party signing it or acknowledging it in writing (para 154(b); Bill, cl 75).

Rules of admissibility - evidence of previous court decisions

42. Exclusionary rule. Evidence of court decisions in previous cases, including acquittals, should not be admissible as evidence of the facts on which the decisions were based. If relevant for another reason, evidence of the decision should not be able to be used for that purpose (para 171; Bill, cl 80).

43. Exceptions. However, in civil proceedings, evidence of a conviction including by jury, before a magistrate and upon a guilty plea, and convictions by Courts Martial and Defence Force Magistrates under the Defence Force Discipline Act 1982 (Cth), should not be excluded by this rule if tendered against the person convicted or those claiming through that person, provided the conviction is still operative (para 171; Bill, cl 81(2)). Another exception, for all proceedings, should be provided for grants of probate and letters of administration (para 171, Bill, cl 81(1)). The law relating to the admissibility and effect of evidence of a conviction tendered in defamation proceedings and of judgments in rem (for example, a divorce decree) and the law relating to res judicata and issue estoppel should be specifically preserved (para 171; Bill, cl 82). Proposals to protect parties against whom the evidence is led are set out below.

Rules of admissibility - evidence of character and conduct

44. Structure. Evidence relevant to the issues should be distinguished from evidence relevant to credibility (para 174).

45. Evidence relevant to the issues.Evidence of a person's character, reputation or past conduct should not be admissible to prove the person's tendencies revealed by that evidence (para 176, 178; Bill, cl 86). The rule should not prevent the admission of such evidence where the character or past conduct is directly in issue (para 176, 178; Bill, cl84(3)).

Evidence of prior conduct. Evidence of specific conduct should not be admissible to prove a person's tendencies unless the court is satisfied that the person actually did the conduct to which the evidence relates and the conduct and circumstances to which the evidence relates and the conduct and circumstances in issue are substantially and relevantly similar (para 175-6; Bill, cl 87). A rule to the like effect should apply where such evidence is led on the basis that, because the event to which the evidence relates is so similar to the events in issue, it is improbable that they both occurred by coincidence (para 175-6; Bill, cl 88). The standard of proof should be that the court be satisfied that a reasonable jury could so find. A party wishing to rely on such evidence should be obliged to give notice. A similar procedure to that prescribed for hearsay evidence should apply (para 176(b); Bill, cl90). Two further protections should be available to an accused in a criminal trial: the evidence should have substantial probative value and the issue to which the evidence relates should be in dispute (para 175-6; Bill, cl 89).

Character. Generally evidence of a person's character should not be admissible (para177-8; cl 86). The accused in a criminal trial, however, should be able to adduce evidence of good character generally or in a particular respect to show that his or her character is inconsistent with the offence charged (para 177-8; Bill, cl 91). The prosecution should be entitled to rebut the effect of the particular defence evidence admitted (para 177-8; Bill, cl 91(2)-(3)). Where the prosecution wishes to cross-examine the accused about matters arising out of such evidence, leave should be required. A coaccused should be able to lead expert opinion evidence against other coaccuseds (para 177-8; Bill, cl 92-3).

46. Credibility. With the exceptions outlined below, the admission of evidence as to credibility of witnesses and parties should be prevented (para 179; Bill, cl 94). Where, however, the evidence is relevant to other issues, this rule should not prevent the use of the evidence in assessing the credibility of any witnesses concerned (para 180(a); Bill, cl94(2)).

47. Criminal trials - character of accused. The accused in a criminal trial should be able to adduce evidence of his good character generally or in a particular respect. The prosecution should be entitled to rebut the particular evidence (para 177-8, 179(d), 180(d); Bill, cl 95).

48. Cross-examination on credibility. On both civil and criminal trials, crossexamination on credibility should be permitted but substantial probative value on the question of credibility should be required (para 179(a)-180; Bill, cl 96(1)-(2)). There should be additional protections for the accused in a criminal trial. Leave should be required. It should not be given to the prosecution unless the accused has adduced evidence to show his or her good character or the accused's own evidence has attacked the credibility of a prosecution witness and was adduced solely or mainly for that purpose (para 179(b), 180(b); Bill, cl 97). Evidence of conduct that occurred in the events the subject of the prosecution or in the investigation of those events should not be treated as such an attack (para 179(b); Bill, cl 97(5)). A co-accused should not be permitted to cross-examine another accused who has not given evidence against him or her (para 179(b); Bill, cl 97(6)). The prosecution should not need leave where the cross-examination relates to bias, motive to be untruthful, physical or mental condition or prior inconsistent statements (para 179(b); Bill, cl 97(3)).

49. Adducing credibility evidence. Parties should not be able to adduce evidence about the credibility of a witness through other witnesses unless the substance has been denied by the former witness in cross-examination (para 179(c), 180; Bill, cl 99). The evidence that may be adduced should be limited to evidence showing that a witness

- is biased, has a motive to be untruthful, has been convicted of an offence, or made a prior inconsistent statement (para 180(c); Bill, cl 99(1)); or

- is or was unable to be aware of matters to which the witness' evidence relates, or has knowingly or recklessly made a false representation while under a legal obligation to tell the truth (para 180(c); Bill, cl 99(2)). For these categories, leave should be required.

The party against whom such evidence is led should be entitled to rebut it (para180(c); Bill, cl 101).

Rules of admissibility - identification evidence

50. Definition. 'Identification evidence' should be defined to include both evidence by the eyewitness of an identification and reports by a third person of an identification made by an eyewitness (para 182; Bill, cl 3, definition of 'identification evidence').

51. Identification parade. Because of its unreliability, eyewitness identification evidence should not be admissible in criminal proceedings unless an identification parade was held before the identification was made or it was not reasonable to have held an identification parade (para 185-7; Bill, cl 103). Whether an identification parade is reasonable will depend on a number of factors, for example, when it could be held, the availability of appropriate people, whether the identification was made at the time of the offence because the witness saw someone well known to the witness, the importance of the evidence, and the kind of offence. It should be held to be not reasonable to hold an identification parade where, for example, the suspect refuses to co-operate, unless the refusal is based on the suspect's desire to have his or her lawyer present. If it was not reasonably practicable for a lawyer to be present, however, other identification evidence should not be excluded (Bill, cl 103(2)).

52. Use of pictures. Evidence of identification by pictures used by police officers, if adduced by the prosecution, should not be admissible unless the pictures used included those of people without criminal records or, where the accused was in custody at the time of the identification, the photograph of the accused was one taken after he or she was taken into custody (para 188-90; Bill, cl 104(1)-(3)). Where the suspect was in the custody of police, identification evidence based on police pictures should not be admissible unless an identification parade was held beforehand or it would not have been reasonable to hold such a parade (Bill, cl104(1)(a)). 'Pictures' should include photographs and 'Identikit' pictures (para 190(c); Bill, cl 104(5)).

53. Directions to juries (para 191-2; Bill, cl 105). The trial judge should, on request of the accused, warn the jury of the need for caution in acting on eye-witness identification evidence. In particular the jury should be warned not to find that the defendant committed the relevant offence on the basis of identification evidence unless there are special circumstances in relation to the identification or other substantial evidence (not being identification evidence) implicating the accused. In the absence of such evidence, the court should direct an acquittal (Bill, cl 105(3)-(4)). Unrepresented accuseds should be advised of their rights (Bill, cl 105(5)).

Rules of admissibility - privileges

54. Confidential communications. The court should have a discretion to protect communications and records made in circumstances where one of the parties is under an obligation (whether legal, ethical or moral) not to disclose them. This should apply to such relationships as cleric and communicant, doctor and patient, psychotherapist and patient, social worker and client and journalists and their sources. Matters to be taken into account in exercising this discretion should include the need for the evidence, the extent, if any, of prior disclosure, the damage which would occur to the particular relationship by the enforced disclosure of confidential communications and the deterrent effect on similar relationships. The privilege should not be available to protect a communication or document which affects the rights of a person, or which was made in furtherance of fraud, crime, civil penalty or deliberate abuse of statutory power (para203; Bill, cl 109).

55. Privilege against self-incrimination (para 216, cl 110). A witness should be able to object to answering a question on the ground that the answer may tend to show that the witness has committed an offence or is liable to a civil penalty. The protection should not extend to questions incriminating the spouse of the witness. No distinction should be drawn between oral and documentary evidence. If there are reasonable grounds for the claim of privilege, the court should advise the witness that he or she does not have to answer the question but that, if the witness answers the question, the court will give a certificate which will prevent the answer being used against the witness in any future legal or administrative proceedings (other than for perjury in respect of the answer) (Bill, cl 110(1), (2), (5)). Where such an objection has been overruled, the court should still be able to give such a certificate if it appears subsequently that there were reasonable grounds for the objection (Bill, cl 110(3)). This recommendation should not apply to the accused giving evidence in his or her trial about the facts in issue in the trial (Bill cl110(5)).

56. Client legal privilege (para 195-200; Bill, cl 106-8). On objection by or on behalf of the client concerned, the court should be able to prevent the giving of evidence of the contents of the following confidential communications, and the contents of documents, in the following circumstances.

Communications for advice. Communications between lawyer and client (and between lawyers engaged by the same client) made for the dominant purpose of providing legal advice to the client (Bill, cl 106(1)). The lawyer's normal obligations to claim the privilege on behalf of the client in the absence of instructions to waive it should not be disturbed (para 195).

Communications for litigation. Communications between lawyer or client and a third party (including the client's employees and agents) made for the dominant purpose of providing or receiving legal services in connection with current, pending or anticipated litigation (Bill, cl 106(2)). Similar provisions should apply in relation to the unrepresented litigant (Bill, cl 106(3)).

Documents, etc. The protection should extend to documents (such as notes, memoranda, opinions and advices of the lawyer and records of communications) prepared for the same purposes (Bill, cl 106(1)(b); (2)(b)).

57. The privilege should apply to communications to the prosecution where a client/legal adviser relationship exists. It should operate indefinitely and should be able to be claimed or waived by the successor to the client's rights and obligations in relation to which the privileged communication was made or document created (para 196(c), 200; Bill, cl 108, definition of 'client').

58. Loss of client legal privilege. The privilege should not apply to evidence relevant to the intentions or competence in law of a client or party who has died (para 196(c), 200; Bill, cl 107(2)). It should not apply to facts or things actually observed by the lawyer unless to give that evidence would involve disclosure of privileged material. In an action between clients of the same lawyer, it should not apply to prevent the giving of evidence of communications and documents related to the matter on which the lawyer was consulted by them (Bill, cl 106(11)). The privilege should not apply to prevent the giving of evidence of the making of a communication or a document that affects a right of a person (para 196(c), 200; Bill, cl 107(5)).

59. Apart from consent (Bill, cl 107(1)), the privilege should be lost if the client voluntarily discloses the substance of the communications or documents (Bill, cl 107(6)) unless the disclosure was to a co-client for the purpose of obtaining or giving legal assistance for both of them, obtained by duress or deception or compelled in error (Bill, cl106(9)-(10)). It should not protect communications or documents prepared in furtherance of a crime, fraud or an act rendering a person liable to a civil penalty. Nor should it protect communications or documents prepared in furtherance of a deliberate abuse of statutory power (para 197-8; Bill, cl 107(12)-(13)). The privilege should not prevent a court from enforcing an order of a court (Bill, cl 107(3)). It should not result in the withholding of evidence adduced by an accused in his or her defence, provided that the protection should continue for communications and documents made between or prepared for a person charged with a related offence and that person's lawyer (para196(c), 200; Bill, cl 107(4)). The privilege should not be lost simply because evidence of the communication or material was disclosed accidentally or obtained illegally.

60. Matters of State. The court should be under a duty to prevent the giving of evidence about matters of State if the public interest in admitting the evidence would outweigh the public interest in preserving secrecy and confidentiality in relation to it. This power should be capable of preventing the giving of information relating to, for example, the security and safety of the realm, international relations, the prevention and detection of crime and contraventions of the law, the efficient running of government and the identity of informers. Specific guidelines should be prescribed for the exercise of this discretion (para 220-1 ; Bill cl 112).

61. Reasons for decision of judge, jury or arbitrator. There should be a general rule that evidence of the deliberations, or reasons for decisions of judges, jurors and arbitrators may not be given by them or by a person under their direction or control (para 218-9; Bill, cl 111(1)-(3)). It should not apply in prosecutions for offences relating to the administration of justice, for example, embracery, attempting to pervert the course of justice and offences arising under the Crimes Act 1914 (Cth) Pt111, contempt proceedings or an appeal from such decisions (Bill, cl 111(4)). The rule should not apply to published reasons (Bill, cl 111(2)).

62. Settlement negotiations. There should be a general rule preventing the giving of evidence of communications made in an attempt to settle a civil dispute (including where a party's agent or a mediator is involved) (para 223; Bill, cl 113). It should not extend to communications capable of affecting rights and liabilities and communications relating to issues that have been settled (Bill, cl 113(2)(d), (f)). Similarly, the protection should not be available where all parties to the dispute consent or where reliance on it would enable a party to deceive a court about the course of an attempt to settle the dispute (Bill, cl113(2)(a), (b), (e)). A party who discloses the whole or part of the negotiations in another action should also lose the protection of the rule if the other party to the negotiation consents (Bill, cl 113(2)(a)). An exception should also be included similar to that which applies to client legal privilege in respect of communications in furtherance of the commission of fraud, an offence, a deliberate abuse of statutory power or an act rendering a person liable to a civil penalty (Bill, cl 113(3)-(4)).

63. Privileges - powers of court. The court should be under a duty to satisfy itself that witnesses are aware of their rights in relation to privileges. The court should also have the power to inspect any documents in respect of which a claim is made under the above proposals (Bill, cl 114-6).

Rules of admissibility - discretions to exclude

64. Additional discretions. In addition to these exclusionary rules and the relevance discretion, two discretions of general application should be included enabling the trial judge to exclude evidence even if otherwise relevant.

65. Probative value/prejudice discretion. In criminal trials, the court should be able to exclude prosecution evidence that is more prejudicial than probative (para 130, 142; Bill, cl 118);

66. Improperly obtained evidence. The court should exclude evidence obtained illegally or improperly unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. The discretion should also apply to evidence obtained in consequence of improperly obtained evidence (para 154(b), 164(a); Bill, cl 119). Special provision should be made in relation to evidence of admissions in criminal proceedings. Where the admission was obtained in the course of police or other official questioning, it should be regarded as having been improperly obtained where the questioner knew or ought to have known that his or her acts were likely to impair substantially the ability of the person questioned to respond rationally to questions or where the questioner made a false statement likely to cause that person to make an admission (Bill, cl 119(2)).

Aspects of proof

67. Judicial notice. Formal proof should not be required of 'matters of law', that is, the content and operation of the common law, Australian statutes and Australian delegated legislation published or notified in a Government Gazette. Formal proof should not be required about knowledge that is not reasonably open to dispute and is common knowledge in the locality where the proceeding is being held or is knowledge which is capable of verification by documentary sources the authority of which cannot reasonably be questioned (Bill, cl 21). Both the judge and the jury should be required to take this kind of knowledge into account (Bill, cl 121(3)). In each case, judges should be able to inform themselves about these matters as they see fit. Judges should be required to inform the parties where there is a risk that making their own enquiries to acquire either category of knowledge will cause unfair prejudice. Special provision should be made to preserve the effect of Crown certificates in matters of international affairs (para 227-8; Bill, cl 120-2).

68. Secondary evidence of documents. The existing rules, which limit the ways in which the contents of documents may be proved, should be abolished and replaced with a new regime (para 231). First, whether the document in question is available or not, a party should be able to prove the contents of that document by tendering the following:

Admissions. Admissions made by a party to the proceedings as to the contents of the original document (Bill cl 125(1)(a)).

Duplicates. Documents that are or purport to be copies made by modern reproduction techniques (Bill, cl 125(1)(b)).

Modern documents. Documents that are or purport to be transcripts of sound and similar recordings and documents produced by devices such as computers, which can be the result of retrieving, producing or collating information stored within them on tapes, discs and other modern documents (Bill cl 125(1)(c), (d)).

Commercial and government records. Copies of documents forming part of the records of a business which should include commercial organisations and government departments and instrumentalities and non-profit organisations made and kept in the ordinary course of business or documents that are copies of such documents or purport to be copies of such records (Bill, cl 125(1)(e)). Further, in the case of public documents, a party should be permitted to tender documents that have been or purport to have been published by a government printer or by authority of a government (Bill, cl 125(1)(f)).

69. Where the original is not available, a party should be permitted to tender oral or other secondary evidence (Bill, cl 125(3)). For the purposes of these provisions, 'unavailable documents' should include those that:

cannot be found after reasonable enquiry;

cannot be obtained by any judicial procedure of the court;

are in the possession or under the control of another party who knows or might reasonably be supposed to know that the contents are likely to be relevant;

were in the possession or under the control of another party at a time that party knew or might reasonably be supposed to know that the document was relevant to the proceeding; or

the contents of which are not closely related to the issues to be tried (Bill, cl 8(2)).

70. However, where the original was destroyed in bad faith, secondary evidence tendered by the party who destroyed the original should not be admissible (Bill, cl 8(1)(b)). Several safeguards should be provided. Where the original document is in another country, the party wishing to tender a copy should have to give notice or seek the leave of the court. (Bill, cl 126). The recommended reforms of discovery provisions should apply. So too should the proposal enabling a party to compel another party to produce persons for questioning and documents.

71. Facilitating proof. A number of specific reforms should be enacted to facilitate proof of matters. These should be in addition to other methods of proof such as those provided by the State and Territorial Law and Records Recognition Act 1901 (Cth) (para 233-4).

Authentication and identification. Where the relevance of evidence depends upon the court making a finding as to its authenticity, the court should be able to admit the evidence if satisfied that it would be open to a reasonable jury to find that the evidence is what its proponent claims it to be (para 233(a); Bill, cl 52(1)). In determining the authenticity of a document or thing, the court should be able to examine it and draw inferences from it (Bill, cl 53, 141).

Evidence produced by devices etc. Where it is reasonably open to find that a device or process (for example, cheque sorting equipment) is of a kind that, properly used, does what is claimed for it (for example, on the basis of evidence of general reliability and trustworthiness), it should be presumed that the particular device did what the party claimed it did on the occasion in question. Such a presumption should operate both at the stage of admission of evidence and at the conclusion of the proceedings (para233(b); Bill, cl 127).

Business records. In the case of documents reproducing or derived from information from a device, it should, prima facie, not be necessary to prove the working accuracy of the device if the court is satisfied, on the balance of probabilities, that the device is used for the purposes of a business (para 233(c), 234(a); Bill, cl 127(3)). That presumption should not be available where a reason for producing the document was its use for legal or administrative proceedings.

Other presumptions. There should be presumptions (para 233-4) as to:

- the authenticity of Government Gazettes and documents published by the Government Printer;

- regularity in respect of acts notified in such documents (Bill, cl 129);

- the authenticity and validity of official seals and signatures (Bill, cl 130);

- the authenticity of documents purporting to be copies of public documents (Bill, cl131);

- the authenticity, and due execution or attestation, of documents more than 20 years old produced from proper custody (Bill, cl 132);

- the ownership or origins of objects and things as stated in tags and labels attached to objects or things (Bill, cl 133);

- the due receipt and transmission of telecommunications;

- the receipt of mail within four working days after posting and receipt of telecommunications within 24 hours of being sent (Bill, cl 134); and

- the source of statistics published by the Australian Bureau of Statistics or the Australian Statistician (Bill, cl 135).

Other provisions. Evidence of attesting witnesses to documents (other than wills) should not be required to authenticate the documents (Bill, cl 128). It should be possible to provide evidence in affidavit form to prove facts required to bring these provisions into operation (para 241(b), 242; Bill, cl 142).

72. Standard of proof. The rules for standard of proof should be set out in legislation (para235-6). For civil trials, the standard of proof for all parties should be satisfaction on the balance of probabilities. In determining whether it is so satisfied, the court should be required to have regard to the nature of the cause of action or subject-matter (Bill, cl136). In criminal trials, the standard of proof for the prosecution should be satisfaction beyond reasonable doubt. For the defence, the standard should be the civil standard (Bill, cl 137). For both civil and criminal trials, where the admissibility of evidence depends upon the proof of facts, the standard should be the civil standard. In applying that standard, regard should be had to the importance of the evidence sought to be admitted (Bill, cl 138).

73. Corroboration. The existing requirements of law and practice requiring corroboration should be abolished except in relation to perjury and as specifically required by statute. Instead, for specified categories of evidence which experience has shown ran be unreliable, there should be an obligation, unless there is good reason not to do so, to give a warning about unreliability if a party so requires (para 238-9; Bill, cl 139-40).

Safeguards

74. Discovery. A full-scale review of discovery is outside the Commission's Reference. Nevertheless, to complement a number of the preceding recommendations, especially those relating to hearsay, secondary evidence of documents and the authentication of documents, reform of the rules providing for discovery of documents and other things is necessary. For discovery purposes 'documents' should include all kinds of information-storing media, such as tapes, disks and microfilm (para 241-2; Bill, cl 3, definition of 'document').

75. Production of witnesses and documents. The party against whom documentary evidence is to be led should be entitled, on reasonable request, to examine the record-keeping system concerned and to be provided with everything necessary to understand and test that system and the method of producing (or reproducing) the document led. In addition, a procedure is required to enable a party to have relevant witnesses to be called for cross-examination. It should apply in criminal as well as civil trials and to the prosecution as well as to the defence (para 240(c), 241; Bill, cl143). In civil proceedings costs should be in the discretion of the court (Bill, cl143(2)) to avoid tactical abuse of the rights given.

Miscellaneous

76. Views, demonstrations and experiments. Views, demonstrations and experiments should be treated as evidence (para 242, 3; Bill, cl 145). The court should be able, on application to permit inspections, experiments and demonstrations, but only if the parties and their counsel have been given an opportunity to attend and the judge, and jury (if any) will be present (para 243; Bill 144(1)). The jury should not carry out experiments and the trial judge should so direct them (Bill, cl 144(4)).

77. Voir dire. The determination of questions of fact upon which the admissibility of evidence, or the competence or compellability of witnesses, depends, should be made by the trial judge. This should be so even where the fact is also a fact in issue (para 244-5). The jury should not be present while such questions are determined unless the judge so orders (Bill cl 146(3)) but the jury should be excluded where questions arise as to the admissibility of evidence of admissions or evidence allegedly obtained illegally or improperly (Bill, cl 146(2)). If the jury was present during the voir dire, evidence adduced in the voir dire should be able to be used in the trial proper, subject to the exclusionary rules, without the need to repeat it. If the jury was not present, evidence about evidence given on the voir dire should riot be given unless inconsistent with the witness' later evidence (Bill, cl 146(7)). The rules of admissibility should apply to hearings as to the admissibility of evidence (although in civil cases there should be the power to dispense with the rules) (Bill, cl 146(6)). In a criminal trial, the prosecution in a voir dire concerning the question whether an admission was made in circumstances likely to affect its truth adversely should not be able to ask an accused giving evidence whether the admission is true (Bill cl 73(3)). The accused should retain the privilege against self-incrimination (Bill cl 146(5)). The accused should retain the right to make an unsworn statement in a voir dire and should be able to make an unsworn statement in the hearing proper notwithstanding that he has given sworn evidence on the voir dire (Bill, cl146(8)).

78. Dispensing with rules. If the parties in criminal proceedings consent, the court should be able to dispense with the application of any of the rules of evidence, but the court should be satisfied that an unrepresented defendant understands the consequences of giving consent. In civil proceedings, the court should be able to order that the rules not apply to evidence if the matter to which it relates is not genuinely in dispute or undue expense or delay would be caused if they were applied (para 246-7, Bill, cl147).

[Return to Top]

1. The inquiry

Terms of Reference

Scope of the reference

The significance of the reference

Program of the reference - first stage

Program of the reference - second stage

The future

Footnotes

Terms of Reference

1. Origins of the reference. In 1972 the Senate Standing Committee on Constitutional and Legal Affairs examined proposed evidence legislation for the Australian Capital Territory. In its Report [1] it recommended that:

(i) a comprehensive review of the law of evidence be undertaken by the Law Reform Commission with a view to producing a code of evidence appropriate to the present day; and

(ii) a Uniform Evidence Act be drafted

- to apply the same law of evidence to ACT and to the external Territories;

- as far as is appropriate to apply the same law of evidence in all Commonwealth courts and tribunals; and

- to include the matters now covered in the Evidence Act 1905 and the State and Territorial Laws and Records Recognition Act 1901.

The recommendation was taken up by the Attorney-General, Senator Durack, who referred the matter to the Law Reform Commission.

2. The task. The reference to the Australian Law Reform Commission was in the following terms:

TO REVIEW the laws of evidence applicable in proceedings in federal courts and the courts of the territories with a view to producing a wholly comprehensive law of evidence based on concepts appropriate to current conditions and anticipated requirements AND TO REPORT:

(a) whether there should be uniformity, and if so to what extent, in the laws of evidence used in those courts; and

(b) the appropriate legislative means of reforming the laws of evidence and of allowing for future change in individual jurisdictions should this be necessary.

Scope of the reference

3. The courts. The courts referred to in the Terms of Reference are:

(a) Federal courts. The relevant courts are the High Court of Australia, the Federal Court of Australia, and the Family Court of Australia. The work of these courts varies. Although the High Court's trial work has been substantially reduced since the Judiciary Amendment Act 1976 (Cth), it still hears some cases involving the taking of evidence and the application of the laws of evidence. The Federal Court's trial jurisdiction is varied and covers a wide range of civil and criminal matters including trade practices, Commonwealth administrative law, bankruptcy and industrial law. The Family Court's jurisdiction includes divorce proceedings, custody proceedings, and proceedings for maintenance and property distribution and injunctions. From time to time contempt proceedings (which are of a criminal nature) are brought in federal courts, particularly the Family Court, against persons who are alleged to have failed to comply with their orders.

(b) Territory courts. The relevant Territory courts are the Supreme Court and the Magistrates Court of the Australian Capital Territory, and the Supreme Courts and the Courts of Petty Sessions of Norfolk Island, Christmas Island and Cocos (Keeling) Island. These courts are vested with jurisdictions which cover civil and criminal matters of the widest variety.

4. The laws of evidence - definition. In broad terms, the laws of evidence regulate who may give evidence and who may be required to do so, the manner in which evidence is given, what evidence may be received or excluded, how evidence is to be handled and considered once received, and what conclusions shall or may be drawn from it. They also specify the strength of a party's case that is required before that party can succeed. For the purpose of the reference a more precise definition is needed and was developed in the Interim Report. [2] The topics included in the definition were:

(a) Witnesses - their competence and compellability; their sworn and unsworn evidence; the manner in which witnesses may be questioned.

(b) Rules controlling the admissibility of evidence - the requirement of relevance; the admissibility of various categories of evidence - evidence of the contents of documents, hearsay, opinion, admissions by a party and confessions of suspects, convictions as evidence of the facts on which they are based, eye-witness identification, character, prior conduct of a person, privileges protecting confidential communication, evidence that should be excluded in the public interest; and residuary discretions to exclude evidence.

(c) Aspects of proof - matters of which proof is not required; authentication of documents and things; the standard of proof to be met by the party carrying the legal burden of proof; rules about corroborating evidence. Ancillary areas were also considered.

This choice has not been questioned in discussion of the Interim Report.

5. The laws of evidence - content to be reviewed. The Terms of Reference do not require the Commission to consider the laws of evidence applied in State and Territory Courts exercising federal jurisdiction or to consider the laws of evidence in the context of tribunals, commissions or Royal Commissions. The reference, however, requires the Commission to consider all State and Territory laws of evidence because federal courts, in the absence of contrary Commonwealth laws, apply the laws of evidence of the State or Territory in which they happen to be sitting. [3] Thus the review of the laws of evidence to be undertaken by the Commission involves a consideration of the laws of evidence of all States, the Territories and the Northern Territory, as applied in federal courts.

The significance of the reference

6. Changes in federal courts. The reference was timely. The Judiciary Act solution of applying the laws of evidence in the State or Territory in which a federal court is sitting may have been reasonably satisfactory when the only federal court was the High Court, a court whose major role has been an appellate one in the course of which evidence is rarely given. The creation of two new federal courts, the Family Court and the Federal Court, each having a substantial and increasing volume of trial litigation and each administering national laws, has made it important to consider the suitability of that approach. For example, is it satisfactory to have a system under which the outcome of a case under a federal law could depend on the choice of the State in which the trial takes place?

7. Changes in society. Society has changed and developed considerably since the earlier centuries when our laws of evidence were developed by the courts. The laws we have inherited reflect a society in which communications were face to face or by hand-written letter, accounts and records were kept, copied and maintained by few individuals and few machines, if any, produced evidence. It was appropriate to require direct evidence - for example, evidence of eyewitnesses to the exclusion of hearsay, evidence authenticating letters given only by those who wrote them and evidence authenticating copy documents given only by those who copied them, the production of original documents and not copies - and to require detailed evidence as to the 'trustworthiness' of any machine that produced the evidence.

8. To require such evidence need not, in a simpler society, add to the cost of the litigation or cause any major difficulties. Today, however - with the extreme division of labour, with the clerk on the stool replaced by the computer; with the hand copying of documents replaced by automatic machine copying, microfilm and discs; with communications made by telephone, telex, telefacsimile, computer to computer and via satellite; and with sophisticated machinery and devices which will produce evidence by reading and sorting cheques, or carrying out scientific analyses - it is appropriate to examine critically the laws of evidence. This is not to say that attempts have not been made to meet difficulties caused by some of these changes. Legislation was enacted in most jurisdictions, modelled on 1938 English legislation designed to overcome obstacles in the way of admitting records. More recently in the 1960s and 1970s legislation was enacted dealing with the proof and admissibility of evidence stored on microfilm and computer. Generally such legislation has proved unsatisfactory [4] in part because it was enacted in response to a particular problem. At no time was an attempt made to deal with the issues in a systematic fashion. This reference provides that opportunity. Changes have occurred in other areas:

(a) Religious beliefs. It is commonly thought that the number of people who hold religious beliefs has been declining for some time. Should the religious oath, which may have been appropriate for an 18th century English community, be retained? Is it practical to retain a religious oath in our multicultural society?

(b) De facto relationships. The 'de facto' relationship has assumed a significance in our society: should the rules which exempt a spouse from giving evidence against the other extend to 'de facto' spouses? Should it extend to other relationships?

(c) Psychological research. At a more general level, it is appropriate to review the assumptions of human psychology which underlie so many of our rules of evidence: the effect of the oath, the unreliability of hearsay, the refreshing of memory of a witness, the effect of knowing that a person is of bad character or good character, the nature of 'character', the processes involved in identifying a person. The rules of evidence developed before the study of psychology began or have been developed since with little or no regard to that study. The law should be examined in the light of psychological learning.

(d) Scientific discoveries and new techniques. Increasingly the courts have been faced with more complex and esoteric scientific evidence and evidence produced as a result of scientific discoveries and new theories and techniques claimed to be scientific.

9. Cost and time. A current major concern is the time and cost of litigation. The laws of evidence have an impact in this area. Strict adherence to rules such as 'the best evidence' rule requires production of the original document - rather than, for example, a readily available microfilm copy - regardless of its importance or whether it is disputed. The hearsay rule can be insisted upon to require the attendance of a witness to give direct evidence no matter how unimportant and costly this may be. [5] A witness must be called to authenticate a document. The court may not, initially, draw any inferences about its authenticity by examining it. The same applies to proving a document as a copy of another document even though it may plainly be a photocopy. Witnesses must attend court to give evidence of formal matters, or of the functioning of systems and machines that have produced evidence, regardless of the importance of the evidence or whether there is any real dispute. Courts cannot inform themselves from recognised reliable sources such as street directories or authoritative texts. Time and costs are wasted on extensive cross-examination which is allegedly relevant to the credibility of a witness but which psychological research shows is not. In most jurisdictions, evidence of a conviction is not admissible in a subsequent civil case arising out of the same facts, obliging the court to conduct a second hearing. The effect of the rules of evidence on the time and cost of litigation is a major issue in the reference. It is an issue by reference to which any proposals for reform must be judged. It involves a weighing of benefits that may flow from a particular rule for example, enhancing the quality of the evidence, preserving confidences or minimising the risk of wrongful conviction - against the cost.

Program of the reference - first stage

10. Review of the law. The Commission's first task was to review the laws of evidence applicable in the courts referred to above. In conducting the review the Commission carried out a number of research projects. These are referred to in the Interim Report. [6] To promote discussion, Discussion Paper No 16, Reform of Evidence Law, was published. It was widely circulated and publicised in the media. In addition, an Issues Paper, discussing the basic policy issues raised by the reference, was prepared by the Commission. Many written submissions were received [7] and discussions held with legal practitioners, judges, magistrates and other interested parties on both papers. In addition, approaches were made to State and Territory judges and bodies representing the legal profession to obtain comment on the operation of significant legislation unique to their State or Territory. The results of this review of the law were set out in the Interim Report.

Program of the reference - second stage

11. Consideration of the issues of uniformity and reform. On completion of the review program the Commission proceeded to the next stage of the reference which involved consideration of the issues on which the Commission must report:

whether there should be uniformity in the laws of evidence applied in the relevant courts and if so to what extent; and

the appropriate legislative means of reforming the laws of evidence and of allowing for future changes in original jurisdictions should this be necessary.

The Commission notes that the Attorney-General and the Senate Standing Committee on Constitutional and Legal Affairs spelt out as a preferred objective the production of a wholly comprehensive law of evidence for the federal and Territory courts. [8]

12. The need for draft legislation. To report on these issues the Commission was required to consider:

the differences that exist in the laws of evidence in federal and Territory Courts and the arguments for and against comprehensive uniform laws;

the areas where reform is required;

the substance of proposals for reform that should be advanced;

the most appropriate legislative or other means to achieve the desired reform.

The consideration of these issues required among other things the production of a draft comprehensive Evidence Act. Without such a draft it would not be possible properly to explore and reach any final view on the feasibility of uniform comprehensive legislation or the appropriate substance and methods of reform.

13. Preparation of draft legislation. in working toward the draft legislation, [9] Research Papers were produced on particular topics. Fourteen such papers were produced. [10] They were distributed to legal professional bodies, judges and magistrates of the relevant courts, the presiding judicial officers of State Courts, academics involved in teaching evidence, a selection of State judges and retired judges, government lawyers, the police, practitioners and, where appropriate, other interested persons and organisations. Many submissions were received and considered. [11] Regular meetings were held with consultants to discuss the draft proposals. This was very onerous for them but extremely valuable for the Commission. [12] The proposals were then revised in the light of the comments received and brought together into the one piece of legislation - a comprehensive Evidence Act. [13]

14. An Interim Report. At this stage in the program the Commission had not obtained public responses to a comprehensive Evidence Act or to its tentative views on the issues on which it is asked to report. An Interim Report was prepared. The Interim Report was intended to provide the focus for the extensive public consultation which the Commission conventionally conducts. It dealt with the above issues and followed extensive deliberation within the Commission and with the consultants on the reference. It did not, represent the Commission's concluded views. To aid in consideration of the Interim Report a further Discussion Paper summarising the Report was prepared and widely circulated. [14]

15. Discussion of Interim Report. The major source of comment on the Interim Report has been written and oral submissions and:

(a) Public hearings. In late 1985, the Commission held public hearings in all capital cities. They were well publicised, generally well attended and produced valuable responses and discussion. The occasion of the public hearings was also used to make contact with the legal profession in all jurisdictions and to organise and obtain a response from it.

(b) Consultation with Government. The proposals were discussed with representatives of the Commonwealth Government and Government instrumentalities over several meetings in late 1985 and early 1986. Discussions were held also with the National Police Working Party. Detailed written submissions were also received from participants in those discussions.

(c) Consultation with legal profession. The Law Reform Commission approached the Law Council of Australia with the suggestion that the work of commenting on the Interim Report be broken up amongst the Law Council's constituent bodies. This suggestion was accepted. Detailed responses have been received from these bodies. In addition, seminars have been held with the New South Wales Bar and the Victorian Bar on the issue of whether there should be a comprehensive federal law of evidence and on three of the more difficult areas of the laws of evidence - admissions and confessions; hearsay evidence; evidence relating to character and conduct and credibility. The seminars in New South Wales were organised under the auspices of the New South Wales Law Reform Commission [15] and the Bar Council of New South Wales. The seminars in Victoria were organised by the Bar Council of Victoria. In addition to obtaining valuable comment from practitioners who were present, the Commission received the benefit of the comments of a number of eminent lawyers who offered their services as commentators at the seminars. [16]

The responses to the Interim Report and its conclusions and proposals were considered by the Evidence Division of the Commission over a number of meetings. The Division's membership had changed. Only two of the original Division remained as members, Mr T Simos QC and Mr TH Smith QC, the Commissioner in charge of the reference. The new members were the President, the Honourable Xavier Connor AO QC and Justice Wilcox and Justice Ryan of the Federal Court. Revised proposals were discussed with the consultants and, following that discussion, were revised by the Division into the final form in which they appear in this Report.

16. The Final Report. In the chapters that follow, are set out, where appropriate, the responses to the Interim Report and the conclusions reached on the issues referred to the Commission. The responses to the Interim Report generally confirmed the Commission's tentative views that there is a need for uniform comprehensive reforming legislation. The feasibility of such legislation was also confirmed. The more controversial issues were the policy framework to be used in formulating laws of evidence and the particular proposals put forward, particularly for the criminal trial. The chapters that follow deal firstly with the issue of whether there should be uniform comprehensive reforming legislation, then the issue of the appropriate policy framework and, finally, the detailed legislative proposals.

The future

17. Terms of reference. Under the terms of reference, the Commission was asked to have regard to anticipated requirements and to report on the appropriate legislative means for allowing for future change in individual jurisdictions should this be necessary.

18. Future requirements. It is not possible to predict the future requirements and future problems that a law of evidence will face. We cannot tell, in particular, what new technologies will emerge. In the meantime, what is required is legislation which addresses identifiable problems and issues in such a way that it can be used in a changing society. This can be done, and has been done in the proposals, by providing a systematic treatment and avoiding, wherever possible, language that is too specific. If this is not done, reform proposals will fail. For example, the attempted reforms of the 1960's which dealt with the use of microfilm and photocopies in evidence cannot now be used for copies produced by modern copiers because it was framed in technical language and the technology has changed. [17] By producing proposals which closely reflect the underlying policy objective and which have flexibility built into them it is possible for the legislation to cope with the future. Two examples may be given.

(a) Hypnosis. In recent years in Australia, there has been an increase in the use of hypnosis in the investigation of criminal offences. The Commission received submissions [18] from several experts urging that consideration be given to providing rules to control the admissibility of evidence produced by hypnosis and of the testimony of a witness who had previously undergone hypnosis. At present, there are no guidelines and the hypnosis tends to be carried out by people with little or no training and expertise. The dangers include the increased suggestibility of the person who has been hypnotised and the increased capacity for that person to invent and reconstruct events under hypnosis. There is disagreement amongst experts and the fundamental problem is that we still do not fully understand how the memory and hypnosis work. One option would be to exclude evidence produced by or affected by hypnosis. Such a proposal, however, would probably cause problems in the future when hypnosis may be better understood and controlled. It is better to have proposals of general application which enable the court to approach this and future similar problems in a flexible manner. In the case of statements made under hypnosis, the relevance and hearsay proposals (with their safeguard provisions) and the residuary discretions provide the machinery required. In the case of the witness whose memory was 'revived' by hypnosis, the proposals on relevance, opinion evidence, credibility evidence and the residuary discretions also provide the machinery required.

(b) Survey, economic and statistical evidence. The Trade Practices Commission has made representations [19] about the need for proposals to facilitate the admission of survey evidence and evidence on economic issues. It argued that the Trade Practices Tribunal is able to handle trade practices issues, such as questions of competition, with greater precision and analytical depth than the Federal Court because, in part, it is not bound by the rules of evidence. As has been acknowledged by the Trade Practices Commission the proposals in this Report will facilitate the handling of such issues in a number of significant ways - for example, experienced businessmen will be able to express opinions (and do so on the ultimate question to be decided by the court) [20] and the hearsay proposals will facilitate the use of statistical and survey evidence. The Trade Practices Commission urged, however, that special provisions be included along Canadian lines [21] to enable statistics produced specifically for a particular proceeding to be admitted in evidence and to be given prima facie weight: what was sought was a specific proposal to deal with statistical evidence. Again, however, it is preferable in the long term to provide machinery that can be used to determine the admissibility of all survey evidence. This has been done in the Bill. [22] As the legislation is applied in practice, experience may show that special legislation to facilitate the proof of matters is required. In that event, it would be preferable to include provisions in the specialised legislation concerned - such as the Trade Practices Act.

19. Monitoring. No matter how carefully legislation is prepared, experience shows that problems will emerge once it is enacted and applied. The Commission recommends that to facilitate change in the future, a committee be established to monitor the operation of the legislation. [23]

Footnotes

[1] Senate Standing Committee on Constitutional and Legal Affairs 1972.

[2] ALRC 26 vol I, ch 2.

[3] This is the result of s 79, 80 and 80A of the Judiciary Act 1903 (Cth), s 79, 80, 80A:

s 79: 'The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.'

s 80: 'So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law of England as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.'

8OA: 'The provisions of the last two preceding sections apply, in so far as they are capable of application, to and in relation to a court of a Territory exercising jurisdiction in a suit brought by virtue of section 56 or Part IXA.'

[4] See ALRC 26, vol I, para 323-8; 341-4.

[5] The costs include the cost of time spent by witnesses waiting to give evidence.

[6] ALRC 26, vol I, para 19.

[7] See ALRC 26, vol II, App B.

[8] See Terms of Reference.

[9] ALRC 26, vol II, App A.

[10] Smith 1981a; 1981b; Re & Smith 1981; 1982a; Odgers 1982; Re & Smith 1982b; Kirby, Cunliffe & Smith 1982; Re & Smith 1982b: Odgers 1983a; Re 1983; Freckelton 1983; Ball 1983; Odgers 1983b; Freckelton & Smith 1983. They contain material generally not included in the interim Report or this Report, eg analysis of Australian, English, Canadian and American reforms. Copies of Research Papers are available in public, Supreme Court and Law School libraries.

[11] ALRC 26, vol II, App B. Reference was made in the Interim Report to some of the submissions. Of necessity the Commission has had to be selective.

[12] The proposals are the result of these discussions and deliberations but do not necessarily accord with the views expressed by those who have been involved.

[13] ALRC 26, vol II, App A. The Commission wishes to acknowledge the research assistance given by the New South Wales Law Reform Commission on the topic of privilege and the assistance given by Mr Trevor Martin QC who considered and commented on an early draft of the Interim Report and the proposals.

[14] ALRC DP 23. The Commission had not attempted extensive formal empirical research at that stage. Time and resources had not allowed it. instead, the approach had been taken of using the wealth of research which had been undertaken in other enquiries, in Australia and overseas, and the research of psychologists, as well as seeking the views of those experienced in the operation of the trial system. A further purpose of the Interim Report, therefore, was to identify those areas, if any, where empirical research was necessary before advancing final proposals. None were identified. Rather, what is required is monitoring of the proposals when implemented.

[15] The New South Wales Law Reform Commission also has a reference on the laws of evidence.

[16] They included, from New South Wales - K Mason QC, GR James QC, the Honourable Mr Justice McHugh, BT Sully QC, SR Norrish, PM Biscoe, MF Adams, POG Paine, PM Donohue - and from Victoria - J Coldrey QC, JM Batt QC, DM Byrne QC, MEJ Black QC, M Weinberg, P McDermott. The proceedings were chaired by RD Giles QC, BS O'Keefe QC, the Honourable Mr Justice Pincus, the Honourable Mr Justice Sheppard, the Honourable Mr Justice Hampel, the Honourable Mr Justice Fogarty and the Honourable Mr Justice Gray.

[17] ALRC 26, vol I, para 321-4.

[18] Professor PW Sheehan, University of Qld, Submission 6 (7 November 1985); Australian Society of Hypnosis, NSW Branch, Submission 27 (29 November 1985).

[19] Trade Practices Commission, Corporate Planning and Services, Submission 56 (19 February 1986) 3-8; Trade Practices Commission, Submission 77 (9 April 1986) 1-3, Submission 96 (27 June 1986) 1-2, Submission 119 (21 July 1986) 1-2.

[20] See the opinion proposals, para 148ff.

[21] See Combines investigation Act (Can) s 45.

[22] See the hearsay proposals and safeguard provisions, the opinion proposals, the residuary discretions and the power to waive the rules in civil trials.

[23] An analogous proposal was advanced by the Commission in ALRC 33 para 281-3; draft Admiralty Bill 1986, cl 42 in App A to that Report.

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2. A federal evidence law?

Interim Report conclusions

Discussion of the Interim Report

Conclusion

Footnotes

Interim Report conclusions

20. A comprehensive statutory restatement. The Interim Report contained a detailed description of the differences in the rules of evidence existing between the States, the Northern Territory and the Territories. [1] It also described the many areas of uncertainty and other deficiencies of the rules of evidence. It concluded that there was a very strong case for a comprehensive statutory restatement of the laws of evidence. The lack of uniformity and the need for reform in all areas of the law of evidence pointed to this conclusion:

Uniformity. Federal courts apply the laws of evidence of the State or Territory in which they happen to be sitting. [2] At present there is uniformity between the courts of a State [3] and the federal courts when sitting in that State, not between federal courts sitting in different States. The issue is whether, if there must be some disuniformity, it is better that there be uniformity between State and federal courts sitting in a particular State, or between all federal courts throughout Australia. The Commission is strongly in favour of the latter on grounds of convenience and principle. But even disregarding those considerations, if the choice is between leaving federal courts to administer complex, obscure, uncertain and conceptually unsound laws of evidence or of introducing a simpler and up-to-date law of evidence, the choice is clear....

Reform. The present law is the product of unsystematic statutory and judicial development. It is a highly complex body of law which is arcane even to most legal practitioners. It contains traps and pitfalls which are likely to leave the unrepresented litigant baffled, frustrated and defeated. The law of evidence differs widely from State to State. There are also many areas of uncertainty in the law of evidence - areas on which definitive law is yet to be pronounced by the courts. The need for reform is also demonstrated by what happens in practice - the complexities are ignored; oversimplified versions of the law are applied and judges try to discourage use of its technicalities. [4]

The Interim Report invited a response to the issues raised and to the Commission's tentative conclusions.

Discussion of the Interim Report

21. The issue of uniformity. There was general acceptance of the proposition that there should be uniform laws of evidence operating in the federal and Territory courts. Some concerns, however, were raised by some commentators. They relate to the desirability of uniform laws of evidence in all courts in Australia. They do not detract from the desirability of having uniform laws of evidence in at least the federal and Territory courts.

(a) State courts exercising federal jurisdiction. State courts handle most trials of federal criminal offences and most litigation involving the Commissioner of Taxation. The Interim proposals would not extend to State courts exercising federal jurisdiction in such matters. Concern was expressed [5] that the different rules of evidence can result in different decisions in such cases depending on where the trial takes place. [6] Another concern raised [7] was that the benefit of the proposals would not be available in State courts exercising federal jurisdiction. Those raising these issues, however, do not suggest that the proposals be extended to State courts exercising federal jurisdiction. It was pointed out that there would be difficulties, in the absence of similar State evidence laws, in the trial in State courts of persons charged with both federal and state offences. What the above responses raised is not an argument against uniformity in federal and Territory courts. It is rather an argument for uniformity throughout Australia in all courts whether federal, State or Territory. The Commission's Terms of Reference do not extend to that question. In any event, if such unformity is desirable, the best course would be to implement reforms in federal and Territory courts and monitor their operation. Only after that, and any fine tuning that might be required, should the attempt be made to achieve uniformity throughout Australia. The experience in the United States of America proves the wisdom of this course. There, federal rules were enacted in 1975. In the years that have followed they have been implemented in over half of the States of that country.

(b) Cross-vesting of jurisdiction. Another issue raised [8] was the potential for 'dis-uniformity' that might be increased should legislation on crossvesting of jurisdiction be enacted. For example, it was argued that if a matter in a State court is referred to the Federal Court, then the proposed Evidence Bill, if enacted, would apply to the trial of that matter. If it was referred the other way, State law would apply. For this reason, too, it was argued that parallel legislation throughout Australia would be desirable. The issue has been addressed in the Jurisdiction of Courts (CrossVesting) Bill 1986 (Cth) where it is provided that, in a proceeding where reliance is placed on the cross-vesting of jurisdiction, the rules of evidence to be applied shall be 'such as the court considers appropriate in the circumstances, being rules that are applied in a superior court in Australia or in an external Territory'. [9] Again this points to the desirability of uniform laws throughout Australia. As already stated, the best prospect of that result lies in first enacting rules at a federal and Territory level.

(c) Problems for witnesses. Concern has been expressed that the task of experts such as valuers giving evidence will be made more difficult if they have to comply with one set of rules in the State jurisdictions and another in the federal. Concern was expressed that confusion will be caused. The Commission's view is that having different rules should not create problems. [10]In practice, if an expert's evidence is admissible under State laws, it should be admissible under the proposals. If, however, the expert in a federal court has not complied with the technicalities of the State law, the federal rules will assist if an opposing party seeks to rely on technicalities. The Commission does not expect life to be more difficult for valuers and other expert witnesses.

22. The issue of reform. There has been general acceptance of the proposition that reform is necessary in all areas of the laws of evidence. The debate has focussed on the appropriate solutions to the problems that the Commission has identified. Nonetheless the reforms have been resisted by some on the ground that, in their view, the present rules are working satisfactorily. Those who have taken this position have acknowledged that the present system works in large measure because experienced lawyers do not insist on strict compliance with the rules and because many judges make it very clear to parties who are relying on the strict application of the rules of evidence that they do not approve. The Interim Report noted that this view and explanation had been expressed in discussions of the Reference prior to publication of the Interim Report and had been expressed in Canada and the United States of America where attempts have been made in recent years to carry out substantial reforms of the law of evidence. There, as in Australia, the law 'works' only because it is ignored. [11] Discussion has confirmed that the practice of ignoring the law is itself a powerful criticism of the law and demonstrates the need for its reform.

23. Comprehensive federal legislation - arguments in favour. Differences, uncertainties and other deficiencies are to be found in all areas of the laws of evidence. It was argued in the Interim Report [12] that it is only by uniform and comprehensive legislation that the differences in the law can be removed and the many areas of uncertainty and other deficiencies in the law can be significantly reduced. Such legislation can also render the law more accessible and enhance the prospects of equality before the law. Further, as was argued in the Interim Report, enacting comprehensive legislation provides the opportunity to simplify and organise the law. This can only reduce the confusion and lack of knowledge and understanding that is found at present in the highly disorganised and disparate body of law that we call the laws of evidence. [13] The specific arguments advanced in the Interim Report in favour of uniform comprehensive legislation have not been directly challenged.

24. Comprehensive federal legislation - arguments against. Arguments against a comprehensive statute were also discussed in detail in the Interim Report. [14] The concern that has been raised since publication of the Interim Report is the concern that legislation will prevent the law developing and prevent the courts dealing with problems that may arise. This issue was also discussed in the Interim Report. [15] In considering this issue it is necessary to compare the present law with the proposals. The present law is well and truly ossified except in those areas where there is uncertainty. It is ossified in critical areas such as the hearsay rule where courts have refused to develop further exceptions for many years. It must also be acknowledged that the courts have not been particularly successful in either developing or clarifying the laws of evidence in recent years. [16] Whether legislation will prevent the courts developing the law and dealing with new problems depends on its terms. The proposed legislation, in its language and in the strategic use of discretions, provides ways and means for the courts to develop the law and cope with new situations. On the other hand, even if it were not possible for the courts to develop the proposed legislation, the Commission is of the view that the framework and substance provided in the proposed legislation are a substantial improvement on that which we have and for that reason should be accepted. In fact the proposed legislation can be developed further - by the courts and by the Parliament. To facilitate legislative change, should this become necessary, the Commission recommends that machinery should be provided for monitoring the proposals so that their operation can be reviewed from time to time and changes made speedily should this be necessary. [17]

Conclusion

25. Uniform comprehensive legislation. The problems identified in the Interim Report continue. The Commission has continued to monitor the situation and can report that there has been no improvement. Details are set out in Appendix C. It is unacceptable as a matter of principle to have in the one polity, the Commonwealth, differing rules that may lead to different results in the application of national legislation where this is the result of the logically irrelevant factor of where a case is heard. The differences, uncertainties and other deficiencies can only be dealt with by uniform comprehensive legislation.

26. A federal law - policy and proposals. it becomes necessary to produce a comprehensive statute. this was attempted in the Interim Report - in part to test its feasibility. Debate centred on its content. Often the differences of view that emerged stemmed from different assumptions, in many cases unstated, about the policy objectives to be served by the rules of evidence. The policy questions raised by the reference were discussed in the Interim report and are reviewed in the next chapter.

Footnotes

[1] ALRC 26 vol I, ch 4, 5 and vol II, App C.

[2] Judiciary Act 1903 (Cth) s 79, 80 and 80A.

[3] The same issues arise in relation to federal courts and Territory courts and the laws of evidence.

[4] ALRC 26, vol I, xxxii-iii.

[5] DPP (Cth) Submission 12 (3 December 1985) 1-5.

[6] eg, in a prosecution in a Queensland court, the trial judge was required to direct an acquittal of an accused charged with drug offences where the Crown relied on the evidence of an accomplice and there was no corroboration. in other jurisdictions, such as New South Wales, all that would have been required of the judge was a warning to the jury of the dangers of conviction on the uncorroborated evidence of the accomplice. R v Drury (1983) 50 ALR 159.

[7] Commissioner of Taxation (Cth) Submission 46 (January 1986) 1-2.

[8] id, 1.

[9] Jurisdiction of Courts (Cross-Vesting) Bill 1986 (Cth) cl 11(1)(b).

[10] For example, if the expert produces a photocopy of Certificates of Title of comparable properties and the opposing party requires production of the original.

[11] ALRC 26, vol I, ch 6.

[12] ALRC 26, vol I, ch 5.

[13] Examples of misunderstanding continue to arise in discussion of the law: the suggestion that lay opinion evidence is excluded because it is irrelevant not because it is opinion evidence; seeing exclusionary rules as rules prescribing methods of proof; 'the relationship' between relevance and the exclusionary rules (the view that, if evidence does not come within a rule of admissibility, it is not admissible and the confusion about whether the hearsay rule and legislation is relevant to the admissibility of computer evidence or must be satisfied before such evidence is admissible) the view that in the absence of an opportunity to cross-examine interviewers, evidence of their statements is hearsay (see Mobil Oil Corp v Registrar of Trade Marks [1984] VicRp 3; [1984] VR 25, 26-7); the view that evidence of previous representations tendered to prove that the representations were made constitutes hearsay evidence, cannot be admitted unless it is within an exception to the hearsay rule and the view that evidence of prior conduct is an exception provided it is relevant (see Peet & Co Ltd v Racal [1985] WAR 164, 173); the view that evidence that is relevant is not prima facie admissible (see R v Tilley [1985] VicRp 50; [1985] VR 505, 507). As to the systematic treatment of the laws of evidence see Smith 1985.

[14] ALRC 26, vol I, para 223ff. No new arguments have been raised.

[15] id, para 227.

[16] id, para 226; vol II App C. See also App C to this Report.

[17] A recommendation of DPP (Cth): DPP (Cth) Submission l2 (3 December 1985) 5.

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3. Policy framework

Introduction

Assumptions underlying the reference

Purposes of the laws of evidence - Interim Report analysis

Response to Interim Report

Conclusion

Footnotes

Introduction

27. Scope of the chapter. Before considering proposals for reform, it is vital to identify the policy assumptions of the reference and the objectives of the laws of evidence and to formulate a policy framework. The importance of this task was emphasised in the course of discussion of the Interim Report proposals. In particular, where views differed, it was often found that the reason was that differing views were held about the purposes the laws of evidence should serve or about the priorities to be given to competing policy objectives. This chapter surnmarises the discussion in the Interim Report of:

the policy assumptions underlying the reference and their implications for reform proposals, and

the nature and purpose of the trial system which the laws of evidence must serve.

The responses received to the discussion of these questions are considered. The chapter concludes with a statement of the policy framework adopted for the proposals.

Assumptions underlying the reference

28. Continuation of the trial system. The Interim Report argued that the terms of reference do not authorise or require the Commission to consider changes to the trial system except where such changes are necessary to meet problems existing in the application of the laws of evidence. Changes to the nature and objectives of the civil and criminal trial are otherwise outside the terms of reference. These conclusions were generally accepted but were questioned by some in the context of the criminal trial. The points raised are considered further below. [1] Two particular features of the trial system, however, should be noted.

(a) The adversary nature of the civil and criminal trial. In our adversary system the parties have the right and the responsibility to choose the manner in which they will go forward with their case and the evidence they will present to support it. They also have the responsibility of objecting to and testing the evidence presented by the opposing party. They - including the accused [2] - must live with the consequences of those choices. The Interim Report argued that rules are, therefore, needed to guide and control the participants if an adversary trial is to be managed effectively. It was also argued that another consequence is that there needs to be an appropriate level of predictability of operation of those rules which affect who may be called and compelled to give evidence, when formal evidence is required and what evidence may be admitted. Without it, it is difficult for parties to prepare for trial. [3] Further, without a body of rules it would be more difficult to control trials through an appeal system and that appellate review in turn would be unpredictable. The point was made, however, that what is an appropriate level of predictability is a difficult question. The more detailed and precise the rule, the more difficult it may be to understand it fully and the more rigid it is likely to be in its application. The more general the language used the more flexible the rule will be but the less predictable will be its application. This issue is central to the approach to be taken in reform proposals. [4] The approach taken in the interim proposals was to attempt to draft rules as the first option. Where this was not possible, discretions were formulated. The above conclusions and the approach taken to the proposals have not been questioned in submissions on and discussion of the Interim Report.

(b) Jury trial. Reference was made in the Interim Report to the view sometimes expressed that the laws of evidence have, as one of their purposes, keeping from the jury evidence which may be misused or mis-estimated by them. [5] While the thesis that the rules of evidence are the 'child of the jury' was rejected, it was acknowledged that the significance of jury trials for the rules of evidence had to be considered. The question was raised: should there be separate rules designed for jury and non-jury trials? The argument for separate rules is, in essence, that a more flexible and less exclusionary system can be used for non-jury trials. [6] Judges and magistrates, it is said, through training and experience, are less susceptible than jurors to mis-estimating and misusing evidence such as hearsay or character evidence. On this issue, the Interim Report concluded that, on the available evidence, [7] it should not be assumed that there is necessarily such a difference between the abilities of judicial officers and jurors that different rules should be developed for jury and non-jury trials. Rather, for the purposes of the reference, the distinction between civil and criminal trials was seen as the more important distinction. As noted in the Interim Report, there can be no civil jury trials in the Family Court and the Territory Magistrates Courts or Courts of Petty Sessions. In the other courts, civil jury trials can only be obtained with leave and have not occurred for many years. There have, however, been juries in criminal trials in the ACT and Norfolk Island. Further, regardless of the tribunal's qualities, there may be other reasons why doubtful evidence should be excluded from criminal trials except in clearly defined circumstances. The nature and purposes of criminal proceedings may dictate such an approach. [8] The Report also noted that considerations of time, cost and fairness - none of which have any connection with the quality of the tribunal - warrant control over unreliable and dangerous evidence. The emphasis in the Interim Report on distinguishing between civil and criminal trials rather than jury and non-jury trial, has received general support.

29. Continuation of laws of evidence. The other underlying assumption noted in the Interim Report was the continued existence of laws of evidence. In this regard the reference contrasts with the trend towards setting up administrative tribunals on the basis that they are not to be bound by the 'rules of evidence'. [9] These tribunals often proceed on an adversary trial basis. The Interim Report considered whether a similar approach should be taken with trials in our formal court system. [10] It noted that there are reasons other than dissatisfaction with the rules of evidence [11] for dispensing with the rules of evidence in administrative tribunals. The issue before such tribunals often concerns the appropriateness of an administrative decision. There is much to be said for the tribunal approaching the issue like an administrator. Also, the dispensation from the rules of evidence may reflect a desire to create an inquisitorial procedure rather than an adversary procedure. [12] The point was also made that these approaches are not entirely satisfactory. [13] The Interim Report concluded that even if it were open to the Commission under the terms of reference, it would not be appropriate simply to abolish the rules of evidence. Courts, like tribunals, must have the means of controlling proceedings if only to ensure that they do not become too protracted. In the absence of rules, practices would develop which, under the pressures of an adversary system and the rules of precedent, [14] would themselves develop into rules and those rules would ossify, as happened in the development of the laws of evidence. [15] The conclusions of the Interim Report on this issue have not been questioned.

Purposes of the laws of evidence - Interim Report analysis

30. Serving the nature and purpose of the trial. The laws of evidence must serve the trial system and its objectives. Several issues were identified and discussed in the Interim Report:

whether and to what extent a trial is a search for the truth;

the nature and purpose of the civil trial; and

the nature and purpose of the criminal trial.

31. A search for truth? Reference was made to the assertion made from time to time that the purpose of the trial is to search for the truth. The procedures of a trial support this view - witnesses are required to take an oath to tell the truth; they are subjected to questioning so that their assertions as to facts may be checked and verified as far as possible. [16] The Interim Report concluded, however, that the 'search for the truth' proposition is not valid. Our trial system falls well short of that objective and deliberately so. The parties place the material before the judge. Its extent and quality depends on the energy and resources of the parties and their desire for victory. Generally, both law and tradition prevent the judge from doing more than seeking clarification through his or her own questioning. Often one or both parties may not wish to establish 'the whole truth'. It is also possible for cases to be decided on the basis of assumed facts. Time and cost constraints also limit the 'search'. In reality, what happens is that 'a new kind of truth is established'. The facts as found by the court are taken to be true. [17]

32. While a trial is not a 'search for the truth', it does, however, involve a serious attempt to reach conclusions about what occurred in the past. The Interim Report argued that that attempt had to be examined in the context of the nature and purposes of civil trials and criminal trials.

33. Nature and purpose of the civil trial. The Interim Report described the civil trial as a method for the resolution of a dispute between plaintiff and defendant [18] and argued that it serves the purposes of ordered society. To do so, however, the object of a trial must be something more than merely to resolve a dispute - it is to resolve the dispute in a way which is generally acceptable, or as we usually say 'just' [19] or 'morally acceptable'. [20]

A contested law suit is society's last line of the defence in the indispensable effort to secure the peaceful settlemment of social conflicts ...

In judging the law's handling of its task of fact-finding in this setting, it is necessary always to bear in mind that this is a last ditch process in which something more is at stake than the truth only of the specific matter in context. There is at stake also that confidence of the public generally in the impartiality and fairness of public settlement of disputes which is essential if the ditch is to be held and the settlements accepted peaceably. [21]

34. The Interim Report concluded that to achieve its purposes the civil trial system must command the respect and confidence of parties and the community and that this will depend on at least the following.

(a) Fact-finding. Although a civil trial is not a 'search for truth', it is nonetheless of critical importance that the courts make a genuine attempt to find the facts. If this is not done, the system will be seen to be at best arbitrary and at worst biased and will lose the confidence and respect of the community. [22] Any limitation on the attempt to find the facts requires justification.

(b) Procedural fairness. The parties must be given, and feel they have had, a fair hearing. This will depend in part on the extent to which they have been able to present their case - 'a litigant prevented from supporting his case, . . . is bound to feel dissatisfied'. [23] It will also depend upon the extent to which they have been able to challenge and meet the case presented against them. Again, limits require justification. This need has been recognised by the law in its development of the concept of natural justice. It requires that a person is entitled to be given a proper hearing before a determination is made affecting his or her rights. [24] The fairness of the proceeding will also depend on the conduct of the judicial officer - the more arbitrary or subjective it appears to be, the less acceptable to all concerned. It is also important that there be the appearance and, if possible, the reality of control by law rather than judicial whim. [25] Detailed rules of evidence lend to the trial the appearance of proceedings controlled by the law, not by the individual trial judge's discretion, [26] and reduce the scope for subjective decisions.

(c) Expedition and cost. The parties and the community will judge the civil trial system in part by considering its efficiency. [27] Any rules or proposals must be evaluated in the light of their effect on the time and cost of the trial. [28]

(d) Quality of rules. To the extent that the system operates under rules, the more anomalous, technical, rigid and obscure the rules seem, the more the system's acceptability is lessened. The parties in a case can meet the situation by agreeing to ignore or waive the more unsatisfactory rules, as widely happens in the conduct of trials at present, particularly civil trials. This, however, only results in the rules lying in wait for the unwary and the party who does not have legal representation. Any rules or proposals that are complicated, difficult to understand or apply, produce anomalies, lack flexibility where this is needed or are very technical, require justification.

This analysis of the civil trial has not been questioned. The analysis that has been questioned is that of the criminal trial.

35. Nature and purpose of the criminal trial. The Interim Report argued that, like the civil trial, the criminal trial involves an attempt to establish the facts. Like the civil trial its credibility depends substantially on a genuine attempt being made to establish the facts on the basis of which the final decision is made. It also depends on the other matters referred to above - procedural fairness, efficiency and the quality of the rules. The Interim report also argued, however, that the nature and purpose of the criminal trial differ significantly from those of the civil trial. Its larger and more general object is to serve the purposes of the criminal laws, which are to control, deter and punish the commission of crime for the general good. At the same time it seeks to do so with an approach and underlying philosophy that differs from that of the civil trial. The following points were made.

(a) Accusatorial system. A criminal trial is not directed to resolving a dispute between parties. Although the Crown makes allegations and these are disputed by the accused, the trial is accusatorial and the accused is presumed innocent until proved guilty and is under no obligation to assist.

(b) Minimising the risk of wrongful convictions. The criminal trial traditionally has been seen to reflect the view that it is in the interest of the community that the risk of conviction of the innocent be minimised even if this may result in the acquittal from time to time of the guilty. [29]

(c) Definition of central question. The central question in a criminal trial is whether the Crown has proved the guilt of the accused beyond reasonable doubt. The purpose of the criminal trial is not 'to find out if the accused is guilty'. The primary and specific object of the system is to be able to say with confidence:

that if there is a verdict of guilty there can be no doubt that the accused did what was charged with the requisite mens rea.[30]

(d) Recognition of rights of individual.

The convictions of 'guilty' persons are not to be pursued and obtained at virtually any cost. The conviction of the guilty is important ... but . . . accused persons are entitled to the benefits of certain rights and protections as a matter of recognition of their personal dignity and integrity, and also, on a far broader scale, as a measure of the overall fairness of the society to the individuals within it.[31]

(e) Assisting adversary contest. It is also important to arm an accused person with some protections to give credibility, if not substance, to the idea of the adversary system as a genuine contest.

The Interim Report pointed out that this view of the nature and purpose of the criminal trial is of long standing. Particular emphasis was placed on the concern to minimise the risk of convicting the innocent - 'it is better that nine guilty men should escape than that one innocent man should be wrongly convicted'. [32] This is a proper concern for a variety of reasons including:

the seriousness of the matters involved;

the fallibility of the existing system, depending as it does upon human perception, memory, and recapitulation at all stages of the proceedings; and

the imbalance of resources that generally exists in favour of the prosecution in the adversary trial of criminal offences; [33]

This view of the nature and purpose of the criminal trial represents the learning of the lessons of history which unfortunately are repeated around us today in totalitarian countries. [34] A critical issue is the way the balance is struck between the prosecution and the defence. [35] This has emerged as a major policy question underlying discussion of the Interim Report proposals.

Response to Interim Report

36. Major issue - the criminal trial. The propositions of policy that have been challenged since publication of the Interim Report are those that relate to the criminal trial. The nature and purpose of the criminal trial has emerged as a vital issue. It is in relation to the rules of evidence to be applied in criminal trials that the most extreme views have been expressed and expressed with the greatest vigour and concern. It is in relation to criminal trials that most of the difficult questions have arisen in formulating proposals. Discussion focussed on three main issues:

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

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

the balance to be struck between the prosecution and the defendant.

37. The 'search for truth' in the criminal trial. It has been put to the Commission that in the criminal trial it is vital that the truth be established and that rules which inhibit the 'search for the truth' should be abolished. It has been argued, for example, that the right of an accused to make an unsworn statement should be abolished, that the privilege against self-incrimination should be abolished or significantly curtailed and that wider cross-examination of the accused as to his past convictions and misbehaviour should be allowed. Such changes, it is said, would assist in establishing the truth. The impact of such changes, however, is more complex than first appears and it can be strongly argued that they would, on balance, adversely affect any attempts to establish the truth.

Privilege against self-incrimination. One of the Commission's interim proposals was that the privilege against self-incrimination remain but that the witness concerned be entitled to choose whether to give evidence if offered a certificate which would prevent the evidence being used against the witness in any subsequent proceedings. This was criticised by those involved with law enforcement on the grounds that it could inhibit the 'search for the truth'. It was urged that the judge and not the witness should decide and the witness should be compelled to give evidence if the judge decides to give a certificate. [36] The criticism, however, overlooks the fact that a witness who is forced to give evidence may give information that law enforcement agencies can use to obtain further incriminating evidence against him. This will put the witness under pressure to lie or 'forget'. Further, the sorts of situations where it is said that compulsion is required are ones where witnesses are at risk of retaliation from criminal organisations or from a relative and, for those reasons, may lie or 'forget'.

The unsworn statement. Critics of the unsworn statement argue that the truth will be ascertained if the accused gives sworn evidence and is crossexamined. The fact is, however, that there are people accused of crimes who, because of their personality or because of their inability to give evidence satisfactorily or to handle cross-examination, will cause the tribunal to conclude, wrongly, that they are guilty. Further, if the right were abolished, many accused will not give evidence. In the Commission's view, the attempt to establish the facts will be better served by reforms such as making the rules of admissibility apply and rendering an accused, who lies in an unsworn statement, liable to perjury charges.

Cross-examination of the accused. It has been argued that wider cross examination of an accused as to his past convictions and misbehaviour should be permitted and the truth will emerge. The prejudicial effect of such evidence is such, however, that the conclusions reached on the basis of such cross-examination are likely to be irrational and distorted and not the truth.

The issue is not a simple one. While a proposal may, on the face of it, reduce the amount of evidence available to the prosecution, its impact on the 'search for truth' will depend in part on whether, if the proposal were not included, the prosecution would in fact be able to obtain the evidence from the witness and whether it would be true.

38. The arguments also assume that we can establish the truth. In the practical context of the trial, however, the view reached at the end of proceedings about the guilt or innocence of the accused may not be the truth. A number of factors can cause this - the frailty of human testimony, the attractiveness or unattractiveness of the victim or the accused, how witnesses and the accused perform under cross examination, the assessment of the demeanour of witnesses and the accused, the relative resources of all the parties, the quality of legal representation, the availability of evidence to the parties, the approach taken by the judge. Even if we had the fullest and most complete examination of all the evidence, it is likely that the complete truth will not emerge and there will remain the real risk of the tribunal arriving at a wrong decision as to guilt or innocence. We therefore have to decide what risks are acceptable - the risk of convicting the innocent or the risk of acquitting the guilty? That is the central issue.

39. The arguments also require that all else be subordinated to a 'search for truth', in particular, the other policy concerns that have, in the past, limited the 'search for truth' in the criminal trial. The Royal Commission on Criminal Procedure referred to the argument in the following terms:

[T]hat basically an individual's rights in the criminal process had to be related to an understanding of what the individual's relationship to government ought to be in a free, democratic society, and that each step in the criminal process, pre-trial and trial, including the right of silence, must be judged not as a means to the goal of achieving a reliable verdict, but also, and equally important, for its coherence with a liberal understanding of how free persons, including suspects in the police station, at all stages ought to be treated. [37]

The serious consequences of conviction, fear of error, a concern for individual rights and fear of abuse of governmental power have limited the 'search for truth' in criminal trials. [38] These matters should not be ignored or discounted.

40. Minimising the risk of wrongful conviction. The traditional concern to minimise the risk of wrongful conviction was challenged. [39] The Commission was referred again to the comments of the United Kingdom Criminal Law Revision Commission 11th Report and urged that they should be adopted. Emphasis was placed on the remarks that there was no wish to lessen the fairness of the criminal trial. It was argued that 'fairness' means that the law should be such as

will secure as far as possible that the result of that trial is the right one. That is to say, the accused should be convicted if the evidence shows beyond reasonable doubt that he is guilty but otherwise not. We stress this, although it may seem obvious, because fairness seems often to be thought of as something which is due to the defence only. At least there seems to be an idea that the defence have a sacred right to the benefit of anything in the laws which may give them a chance of acquittal, even on a technicality, however strong the case is against them. We disagree entirely with this idea . . . We have in mind fairness 'in the general circumstances of the administration of justice'. It is as much in the public interest that a guilty person should be convicted as it is an innocent person should be acquitted. [40]

The Commission agrees with the criticism of technical acquittals. [41] Its proposals will in fact go a long way towards avoiding such results. The last sentence of the above quotation, however, is of critical importance. Interpreted literally it may be accepted. Interpreted literally, however, it does not address the question whether the conviction of the innocent is less against the public interest than acquittal of the guilty. [42] The criminal justice system is fallible. We have to make a choice as to whether and, if so, to what extent we are prepared to accept either the wrongful acquittal of accused people or the wrongful conviction of accused people. Traditionally, the choice has been in favour of minimising error in the form of wrongful conviction. The Commission's view is that a case is not made out for changing this traditional approach. [43] It notes the comment of Mr Temby, Director of Public Prosecutions, in an address to the Victorian Council of Civil Liberties:

[I]n assessing the public interest it seems to me that people would want significant malefactors to be charged and convicted and the not objectively guilty - the innocent - to be acquitted. It could be anticipated that the community would adhere to the words of Sir William Blackstone when he said it is better that ten guilty persons escape than one innocent suffer. [44]

Sir William Blackstone's proposition is not a piece of 'sentimentality' [45] nor is it a ,slogan' or a 'bumper sticker'. [46] It is a fundamental proposition. Are we prepared to live with the certainty of more innocent people being convicted in the hope that we can secure more convictions of the guilty? Perhaps more convictions will be secured. But what will be the community's perception of justice?

41. The balance struck by the Interim Report proposals. The approach of the Commission has been to examine critically the rules of evidence with the traditional policy objectives in mind. It advanced proposals to address weaknesses and problems with the rules of evidence in achieving those objectives. It did not start out with any preconceived notion of attempting to change the balance presently struck between the prosecution and the defence in criminal trials. Inevitably, however, the proposals advanced in the Interim Report affected that balance. Some saw the proposals as favouring the prosecution. Some saw the same proposals as favouring the accused. [47] People looking at the proposals in the Interim Report brought their own perspectives to the task. This is understandable. There was also a tendency to consider each proposal separately and not to consider the proposals in combination. The most extreme position taken against the proposals was that there should be equal treatment - no distinction should be drawn between the rules of evidence applying to the accused and the prosecution in a criminal trial. [48] If this view was accepted, widespread changes to the existing law would be required. At present, the standard of proof borne by the accused is the 'balance of probabilities' whereas that borne by the prosecution is 'beyond reasonable doubt'. The discretions to exclude prejudicial evidence is available to the accused but not the prosecution. Special limits are placed in all jurisdictions on the cross-examination of the accused. Those limits do not apply to the crossexamination of prosecution witnesses. Evidence is admissible of the accused's good character. The prosecution cannot have evidence of the good character of prosecution witnesses admitted. Unlike other witnesses, the accused is generally not a competent witness for the prosecution and in all jurisdictions is not compellable to give evidence. Special rules exist requiring warnings to be given about prosecution evidence. No such rules exist with respect to evidence adduced by the accused. For many years the accused, unlike prosecution witnesses, has been able to give unsworn evidence without being cross-examined. This right still exists in New South Wales, the ACT, Victoria and Tasmania. [49] Such differences reflect the concern to minimise the risk of wrongful convictions. [50] Clearly, if that policy concern is accepted, it will be reflected in different rules.

42. The balance struck - against the prosecution? Some submissions from those involved in the investigation and prosecution of criminal offences pointed to proposals which they saw as tilting the balance too far in the accused's favour or insufficiently in the prosecution's favour. These included:

the proposal to retain the accused's right to make an unsworn statement (notwithstanding that significant qualifications were imposed on the right which addressed criticisms of the exercise of the right);

rules which provide machinery to control the situation where a co-accused charged with a related offence pleads guilty and the prosecution wishes to call that person to give evidence against the former co-accused;

a discretion to excuse spouses, parents, children and de facto spouses of the accused from giving evidence for the prosecution in certain circumstances;

rules to control the admissibility of eye-witness identification evidence;

an optional certification system to protect witnesses who object to answering questions on the ground that to do so may incriminate them (although this restricts the privilege against self-incrimination in most jurisdictions);

the discretion to exclude illegally and improperly obtained evidence referred to above;

the provision of more stringent rules for the admissibility of firsthand hearsay against an accused as compared to rules controlling admissibility of firsthand hearsay on behalf of the accused (notwithstanding that the proposal relaxes the law for the prosecution); and

a rule proposing the exclusion of evidence of admissions and confessions unless the admission and confession was recorded or a third person was present or either was impracticable.

They argued that this showed a bias on the part of the Commission against the police and prosecution. With the exception of the proposals on identification evidence and admissions, the proposals reflected the present law or better practice in several jurisdictions, reformed in some respects, some of which assisted the prosecution. Similar but modified proposals are put forward in this Report. There is 'bias' in the sense that if one is concerned to minimise the risk of wrongful conviction then proposals must reflect that concern. But such proposals simply flow from that concern. There is no bias in the sense of prejudice against the prosecution and the police. In fact the Commission has been criticised for including proposals unfair to the accused and which it was alleged would result in serious disadvantages to the accused and loss of civil liberties.

43. The balance struck - favouring the prosecution? Those submissions alleging a 'bias' against the prosecution and police also overlooked or gave no credit for the fact that the proposals favour the prosecution in criminal trials in many ways. It must be remembered that it is the prosecution that must prove the case against the accused. The defence usually does not have to prove anything. The rules of evidence, in particular the rules of admissibility, tend to place hurdles in the path of the prosecution rather than the defence. Prosecutions can be abandoned because of problems in proving the prosecution case caused by the strictness of rules of evidence. The accused will often rely on the technicality of existing law to try to exclude evidence from the trial. The accused can also insist upon matters being proved in accordance with the letter of the law whether matters are in issue or not. A recently published English report, the Fraud Trials Committee Report, considered what problems are posed by the laws of evidence in criminal fraud trials. The laws of evidence in Australia are similar to those in England.

We have thought it right to devote a separate chapter to the vexed question of the rules of evidence as they apply in criminal cases, because we have concluded that the rigidity and artificiality of the present rules are an obstruction to the just and expeditious disposal of fraud cases. Many of those who have made submissions to us pointed to the court time wasted in calling witnesses simply to testify to the genuineness of routine documents even where there was no dispute that the documents were not forged. Others were more concerned with cases where, owing to the strictness of the rules of evidence prosecutions had not, indeed could not be brought. [51]

It addressed the question what changes should be made. It identified a number of problem areas relevant to this reference, all rules of a technical and inflexible nature:

the requirement of evidence outside a document to authenticate the document (a document cannot speak for itself);

the ability of the accused to require everyone associated with a business record to be called and cross-examined; and

the 'best evidence' rule under which the accused can insist on the production of the original document whether it is important or not and whether it is in dispute or not. [52]

The rules in those areas were seen to be the ones seriously and improperly affecting the prosecution of crimes of fraud. The Commission's interim and final proposals address these problems. Any proposals which alter the rules of evidence to remove or reduce such opportunities will affect the present balance of the trial and will assist the prosecution more than the defence. The interim and final proposals were and are of significant assistance for the prosecution in many areas. They include:

(a) Documents and records. The proposals referred to in the preceding paragraph above and those relating generally to records and machine produced evidence would greatly facilitate the task of the prosecution. These reforms were advanced in part because of concern about the problems in proving white collar offences.

(b) Vicarious admissions. Evidence of admissions by employees and agents would be admissible against the employer or principal if it could reasonably be supposed that the person either had authority to make the statement or the matter related to his sphere of employment. The statement itself could be used as evidence on these points.

(c) Self-incrimination. The certification procedure for the situation where a witness claimed privilege against self-incrimination would enable more evidence to be adduced for the prosecution.

(d) Hearsay evidence. The relaxation of the hearsay rule would assist the prosecution. For example, complaints of victims would be admissible as evidence of the truth of the facts asserted. The proposals would widen the res gestae [53] exception to the hearsay rule. The exceptions relating to statements by deceased persons would be relaxed [54] and extend to statements by persons who are alive but unavailable to give evidence. Should a prosecution witness' evidence be attacked as a fabrication, evidence of prior consistent statements would be received as evidence of the truth of the facts asserted.

(e) Adverse witnesses. The proposals would abolish the hostile witness rules which can hamper presentation of prosecution cases significantly, and replace them by rules which allow for the testing of evidence unfavourable to the party calling the witness by cross-examination by that party.

(f) Unsworn statements. The reforms proposed for unsworn statements of the accused would address problems facing the prosecution - for example that the accused at present can lie with impunity, introduce irrelevant and inadmissible material and attack the character of prosecution witnesses with impunity.

(g) Opinion evidence. Abolition of the ultimate issue rule. [55]

(h) Judicial notice. The reforms in the area of judicial notice would save prosecutions from successful submissions of no case to answer where, for example, it failed to formally prove regulations under which the charges were brought or facts of a formal nature.

(i) Corroboration. The reforms in the area of corroboration warnings would save prosecutions from failing on appeal where the over-technical rules that exist at present were not complied with at the trial.

44. The balance struck - conclusion. Several changes have been made to the Interim Report proposals. Those that may favour the prosecution include:

(a) Tape recording of interviews. The proposal requiring the recording of interviews or the presence of an independent third person has been limited to those interviews where the person interviewed is suspected of a crime. [56]

(b) Illegally obtained evidence. The proposal required the party seeking to have illegally obtained evidence admitted to demonstrate that the desirability of admitting the evidence substantially outweighed the undesirability of doing so. The requirement of a substantial outweighing has been deleted.

(c) Co-accused as witness for the prosecution. The proposal required exceptional circumstances before the prosecution could obtain leave to call a co-accused to give evidence. This requirement has been deleted.

(d) Cross-examination of the accused. The proposal limited cross-examination of the accused on matters going to his credibility to exceptional situations. This limitation has been removed.

Those that may assist the accused include:

reinstatement of the discretion to exclude unfairly obtained confessions (the Lee discretion), and

inclusion of a rule under which a confession of a suspect must be excluded unless he was cautioned. (Under existing law a matter for the Lee discretion).

Ultimately, the effect on the balance of the criminal trial can only be assessed by a consideration of all proposals. From that perspective, it will be seen that, in the Commission's recommendations, an appropriate balance is struck in its final proposals.

Conclusion

45. No justification for change. The Commission has given detailed consideration to the fundamental questions raised. As noted above, its analysis of the assumptions underlying the reference and of the nature and purpose of the civil trial has not been questioned. It has concluded that a clear and strong case needs to be made out before any change is made in our traditional view of the criminal trial. Such a case has not been shown. The debate must be put into perspective. The proper approach must be one that is not simply reactive to specific crises or exigencies. Accepting, for example, that a significant threat to the physical safety and property of citizens is posed by the organised criminal, nonetheless, organised criminals, whether tax evaders, drug dealers or contract killers, are being brought to trial and convicted. The overall picture provided by available statistics does not support a major change in favour of the prosecution in the balance struck within the criminal trial. The evidence does not support the view that the trial system unduly favours the accused. Acquittal rates have been examined from time to time. [57] They are not high. Further, cases continue to arise where persons are wrongly convicted or there are grave reservations about the correctness of the finding of guilt. The view of the Commission remains, therefore, that even if it was within its terms of reference to recommend changes to the nature or purposes of the criminal trial, such change is not warranted.

46. Guiding principles for final proposals. The Commission has, therefore, structured its final proposals using the policy framework developed for the Interim Report proposals.

(a) Fact-finding. A policy framework is used in which pre-eminence is given to the fact-finding task of the courts. The credibility of the trial system ultimately depends on its performance in this area. So the proposals are directed primarily to enabling the parties to produce the probative evidence that is available to them. [58] Departures from this position require justification.

(b) Civil and criminal trials. The different nature and objectives of the civil and criminal trial should be taken into account. A more stringent approach should be taken to the admission of evidence against an accused person (as against the admission for the accused's benefit). The distinction should be recognised in other areas, for example, the compellability of the accused, cross-examination of the accused, unsworn evidence by the accused, and where the court is directed to have regard to the nature of the proceedings in exercising its power. [59] In criminal trials, the effect of reforms on the balance between prosecution and defence has been borne in mind at all times. It is also necessary to consider the position of two or more accused people in joint trials and the application of the rules of evidence to them. Here, the policy concerns that may result in restrictions being placed on the prosecution may cause those restrictions to be lifted so far as the co-accused is concerned. [60] A less detailed and more flexible approach should be taken to the admissibility of evidence in civil proceedings. In general, the endeavour should be, subject to constraints of fairness and costs, to permit a party to tender all of the relevant evidence that it has.

(c) Predictability. The proposals should reflect a bias towards minimising judicial discretion, particularly in those rules controlling the admissibility of evidence. Wherever possible, proposals should be presented in the form of rules. Only where the relevant policy considerations prevent this should discretions be advanced.

(d) Cost, time and other concerns. At all times consideration has been given to the impact of change on the time and cost of litigation and on the time and cost of activities outside the court. At all times clarity and simplicity have been the objective.

47. Other policies. As noted in the Interim Report, the laws of evidence include many rules that are based on policy considerations not connected with the trial system. Examples include exceptions to the general competence and compellability of witnesses, privileges [61] and rules designed in whole or in part to protect civil liberties and discourage police misconduct. [62] The policies behind such rules were examined critically. Some modifications to the rules were suggested in topics including competence, compellability, admissions and privilege. The responses on these issues will be discussed in the commentary to the relevant proposals.

Footnotes

[1] para 37ff.

[2] Re Ratten [1974] VicRp 26; [1974] VR 201, 214.

[3] Predictability is not so important for those rules of a procedural nature - for example, the swearing of witnesses and the questioning of witnesses - although it assists in the smooth running of the trial if satisfactory detailed rules exist.

[4] ALRC IP 3, para 58-60, 97, 103-1 1; Smith 1981a; 1981b; Kirby, Cunliffe & Smith 1982; McLauchlin 1984.

[5] ALRC 26 vol I, para 49ff, 68ff.

[6] id, para 68ff.

[7] ibid; see also Teitelbaum, Sutton-Barbere & Johnson 1983.

[8] Below para 35.

[9] E Campbell, 'Principles of Evidence and Administrative Tribunals' in Campbell & Waller 1982.

[10] ALRC 26, vol I, para 16ff. In the case of the criminal trial there are at least two reasons why a similar approach could not be taken - the trial is accusatorial and the underlying concern to minimise wrongful convictions warrants a strict approach to the admissibility of evidence.

[11] Campbell 1982, 86.

[12] Harding 1971, 534; cf Geschke v Del Monte Home Furnishers Pty Ltd [1981] VicRp 80; [1981] VR 856,863.

[13] Tribunals often refer to the rules of evidence for assistance: ALRC IP 3, para Off; Todd 1981, 97; Campbell 1982, 86; R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228, 256.

[14] These rules require courts to follow the decisions of courts above them in the court hierarchy.

[15] The requirement of logical relevance and the obligation to ensure natural justice would be the starting point, The rules of precedent would hurry the process.

[16] Derham 1963, 342.

[17] id, 344; Can LRC 52; Morgan 1948-49,184-5.

[18] ALRC 26, vol I, para 56ff.

[19] Chorley 1950; see also Hammelmann 1951, 78; Doret 1973-74, 254, 267.

[20] Chasse 1977.

[21] H Hart & J McNaughton, 'Evidence and Inference in the Law' in Learner 1958, 48-59.

[22] Weinstein 1966, 243. As to the importance of a genuine attempt to find the facts, see the critical view of the present trial system as a 'battle of wits' by W Clifford, Institute of Criminology 1982, 71.

[23] Weinstein 1966,246.

[24] The Commissioner of (Police v Tanos[1958] HCA 6; (1957-58) 98 CLR 383,395 (Dixon CJ and Webb J).

[25]Rutherford v Richardson, [1923] AC 1, 5; Best 1849, para 38; Frank 1949a, 154-5; see also Frank 1949b,104-6.

[26] Devlin 1981, 198.

[27] Weinstein 1966, 245-6. Ease in prediction and application of rules is desirable in the case of any procedural rule. A rule successful in this respect assists in economising resources since lawyers will know what they must be prepared to do at the trial. It also assists in inspiring confidence by ensuring impartiality and can be easily applied without a great deal of thought.

[28] For recent discussion see Justice RW Fox, 'Expediency and Truth Finding in the Modern Law of Evidence' in Campbell & Waller 1982, 142.

[29] eg Blackstone, Commentaries on the Law of England, IV, 27; MacKenna 1972, 605, 606, 658, 665; Devlin 1981, 110-6; Emslie 1974, 208; UK Hansard (H of L) vol 338 (14 February 1973) col 1603 (Lord Salmon); the views of Justice Cross reported in Sydney Morning Herald (11 September 1980); Temby 1985, 7.

[30] Justice RW Fox 1982,153.

[31] Sallmann 1983, 31.

[32] L Radzinowicz, 'Illusions About Crime and Justice' in Lasky & Thwaite 1981, 31, 38; Blackstone, 27; see also Widgery 1972.

[33] The advantages of the prosecution, in most cases, include the following: the prosecution selects the charge leg conspiracy); it has professional prosecutors who are usually more experienced than defence counsel; it usually has experienced witnesses; at the trial the accused is placed in the dock; and the preparation of the defence case is difficult where the accused is in custody. There are also usually fewer cost and time restrictions affecting the prosecution in its investigation and preparation. The imbalance is said to be reduced in NSW under the public defender system.

[34] Radzinowicz 1981, 38.

[35] For discussion of the 'balance' in the pre-trial investigation stage, see Phillips report para 1.11-1.31.

[36] Looking at Australia as a whole, the proposal was likely to increase the amount of evidence available.

[37] Phillips report para 1.27.

[38] Damaska 1972-3, 583, 588; Re Ratten [1974] VicRp 26; [1974] VR 201, 214; R v Lucas [1973] VicRp 68; [1973] VR 693, 705-6.

[39] eg DPP (Cth) Submission 12 (3 December l985) 5-6.

[40] Criminal Law Revision Committee 1972, para 27.

[41] See also the criticisms in the Fraud Trials Committee Report, 69.

[42] McKenna 1972, 606.

[43] For discussion of issues see ALRC 26, vol I, para 11, 58.

[44] Temby 1985, 7 quoting Sir William Blackstone, Commentaries on the Law of England, IV, 27.

[45] Costigan report vol 1, 20ff, 24ff.

[46] Morgan 1984, 106.

[47] eg, it was strongly urged upon the Commission that the retention of a discretion to exclude illegally obtained evidence was a totally inadequate solution. It unduly favoured the prosecution. Instead, there should be an approach of automatic exclusion of any evidence obtained illegally or improperly. On the other hand, it was argued that the proposed discretion (which placed the onus on the prosecution to justify admission of such evidence and required that it be demonstrated that the advantages of admitting the evidence substantially outweighed the disadvantages) was a proposal that would unnecessarily and improperly tilt the balance in favour of the accused.

[48] eg DPP (Cth) Submission 124 (3 December 1986) 5.

[49] The distinction is also drawn in legislation creating exceptions to the hearsay rule: ALRC 26, vol II, App C, para 94.

[50] ALRC 26, vol I, para 60ff.

[51] Fraud Trials Committee report para 5.1.

[52] id, para 5.9 ff.

[53] Evidence of statements made at or shortly after the events in question.

[54] eg statements made in the course of the person's duties.

[55] The rule preventing expert witnesses expressing opinions on the questions which the jury will have to decide.

[56] Several committees have urged that evidence of admissions of a suspect that were not recorded should not be admissible except in exceptional circumstances New South Wales Criminal law Review Division 1984, i; Shorter Trials Committee Report para 2.123; Victorian Consultative Committee Report para 6.22. This has not been adopted.

[57] For discussion and references see ALRC 26, vol I, para 12ff.

[58] UKLRC 13, para 6.

[59] eg where a matter is subject to the court's leave.

[60] Particularly the concern to minimise the risk of wrongful conviction.

[61] Client legal privilege and the protection of settlement negotiations are justified on the basis of the public interest in the functioning of the trial system.

[62] The requirement that confessions must be voluntary and the discretions to exclude unfairly obtained confessions and illegally or improperly obtained evidence.

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4. Commentary to proposals - introduction

The proposed legislation

The Evidence Bill 1987

Application of the Evidence Bill 1987

Terminology

The commentary to the Evidence Bill

Footnotes

The proposed legislation

48. Origins - Interim Report legislation. The draft legislation attached to the Interim Report was prepared by identifying the law at present operating in federal and Territory Courts and identifying deficiencies in that law. In some cases the deficiencies were found to be so great that it was necessary to formulate a new approach. [1] The view was taken, however, that it should not be assumed, as the starting point, that the existing law of evidence is wrong. To do so would beg the question, raised in the Terms of Reference, whether the law should be reformed. A case must be made out for change before reform is considered. In preparing the interim proposals the Commission was guided by the principles described above. [2] These proposals represented a significant rationalisation of the existing law and provided a systematic treatment of the subject. They reduced the uncertainties and addressed the many deficiencies. At the same time, anyone acquainted with the laws of evidence would have found much that was familiar. The Interim Report legislation was organised so that it reflected the order in which issues were likely to arise in the trial - the competence and swearing of a witnesses and how they may be questioned; the admissibility of the evidence given by witnesses; and the consideration of that evidence.

49. Revision of Interim Report legislation. The Interim Report legislation was revised in the light of the many submissions received. Some of the submissions are referred to in the commentary that follows, principally those that caused changes to be made to the interim proposals. Also included are submissions raising matters that the Commission considered required mention and a response in the Report. It will be appreciated that from time to time submissions raised issues already canvassed in the Interim Report. Generally, these have not been mentioned unless they prompted changes to the proposals. In addition some submissions showed that the proposals were misunderstood. These have caused the Commission to make changes which will make the legislation more accessible.

50. The proposed legislation.[3] Two Bills are proposed.

(a) Evidence Bill 1987. This contains the substantive proposals.

(b) Evidence (Consequential Amendments) Bill 1987. This makes consequential amendments to Commonwealth and Territory legislation.

51. Evidence Bill 1987. The Evidence Bill 1987 deals with the topics thought to be properly within or incidental to the laws of evidence. It is divided into four main parts together with preliminary and concluding parts.

(a) Witnesses. In this part of the proposed Bill, [4] the rules relating to the competence and compellability, sworn and unsworn evidence, and the questioning of witnesses are set out. This part purports to be an exhaustive statement of the law.

(b) Rules of admissibility. In this part of the proposed Bill, [5] the rules that control the admissibility of items of evidence are set out. It is intended to be an exhaustive statement of the law. The rules will apply at each stage of a witness' evidence, including cross-examination. The Bill commences with the basic rules on which the operation of this part of it rests. All relevant evidence is admissible except as otherwise provided in the Bill. Irrelevant evidence is not admissible. There then follow provisions dealing with different types of evidence. In each case, [6] there is a primary rule which operates to exclude evidence of a particular type and in each case exceptions to that exclusionary rule are set out. The categories [7] of evidence dealt with are hearsay evidence, opinion evidence, admissions, judgments and convictions, character and conduct, identification evidence, privileged communications and evidence excluded in the public interest - evidence the disclosure of which may endanger State interests, evidence of statements made in settlement negotiations, and evidence of reasons for decision of judge or jury. Finally, the Bill contains several discretions to exclude evidence. These to a large extent reflect existing law.

Relevance discretion. A discretion is included which reflects the implicit discretion contained in the concept of relevance. It empowers the judge to exclude logically relevant evidence where the probative value of the evidence is substantially outweighed by the disadvantages that may flow from its admission (consumption of time, prejudice, confusion and misleading effect).
Illegally obtained evidence. A discretion is proposed to deal with evidence obtained illegally or improperly. [8]
Prejudice/probative value discretion. The legislation includes the present discretion which allows a judge to exclude evidence led against an accused person where the prejudicial effect of the evidence outweighs its probative value.

As at present, the rules of admissibility are expressed in terms that relate to evidence and not the questions put to adduce the evidence. The present approach to the application of the rules of admissibility will be allowed to continue, that is, it will be for the parties to invoke the rules by objecting to the admission of evidence. [9] Objections relying on the rules of admissibility will be determined, as at present, in the light of the evidence that would be elicited by the question. As under existing law, the admissibility of a piece of evidence should be determined by first asking whether it is relevant. If the answer to that question is in the negative it should be excluded. If the answer is in the affirmative, the evidence will be admissible unless an exclusionary rule operates to exclude it or an exclusionary discretion is exercised. It will be for the the party against whom it is led to direct the court's attention to the rules set out in the legislation justifying exclusion of the evidence if it wishes to have the evidence excluded. In cases where the relevance of evidence is tenuous, the court will be able to exercise the discretion described above as the 'relevance' discretion. This is done at present in those instances where courts require sufficient relevance before admitting evidence. As under existing law, the legislation does not make a ruling as to the admissibility of evidence final. The unsuccessful party may, in the light of further evidence, renew the objection or the application to have evidence admitted.

(a) Aspects of proof. In this part of the proposed Bill, [10] a number of topics are dealt with: judicial notice (the rules which define that which does not have to be formally proved), rules relating to the proof of the contents of documents, the authentication and identification of evidence (including presumptions to facilitate proof), standards of proof and corroboration.

(b) Miscellaneous and safeguard provisions. In this Part [11] are included provisions which will apply to all or some of the preceding provisions. They include provisions:

* enabling inferences to be drawn from the evidence tendered as to any matter which must be established for the purpose of applying the provisions of the Bill;

* enabling the proof of formal matters by affidavit;

* enabling the waiver of rules of admissibility by the parties and conferring a power upon the judge, in civil proceedings, to dispense with those rules; and

* prescribing procedures for determining the admissibility of evidence.

There are safeguards to protect parties against whom evidence may be led under the more relaxed provisions provided for hearsay evidence, secondary evidence of documents and authentication. Provisions are also included which extend the existing powers of the courts on discovery and inspection to cope with modern technology. Finally, this Part deals with the inspection and use of evidence outside the court.

52. Evidence (Consequential Amendments) Bill 1987. The Evidence Bill 1987 deals with some matters that are also the subject of other Commonwealth and Territory legislation, including legislation establishing federal and Territory courts and the rules of those courts and provisions in the Evidence Act 1905 (Cth) and Evidence and Oaths Ordinances of the ACT and other Territories. An Evidence (Consequential Amendments) Bill 1987 is also proposed to rationalise the relationship between such provisions and the Evidence Bill. [12] In the case of rules of the courts, however, it is not proposed that they be repealed or amended by legislation. Rather, it is appropriate that they be considered by the courts at an appropriate time in the future. Some suggestions are included in Appendix A. [13]

The Evidence Bill 1987

53. A package of proposals. The systematic treatment of the subject has resulted in a package of proposals.

(a) Easing exclusionary rules with safeguards. The proposals ease exclusionary rules such as the hearsay rule. [14] The relaxation of that rule has required lateral safeguards such as the modernising of pre-trial discovery of documents and procedures to enable the party against whom such evidence is admitted to have witnesses and documents produced so that the evidence can be adequately tested. In the case of first-hand hearsay, the safeguard of notice is provided. [15] In addition, residual exclusionary discretions play an important part in complementing the proposed rules of admissibility.

(b) Facilitating proof and safeguards. The proposals enable inferences about the identity and authenticity of a document to be drawn from a perusal of it, enable photocopies and, in certain circumstances, documents purporting to be copy documents to be used to prove the contents of original documents and enable copies to be used even though the original documents are in existence and available. These proposals relax the existing law and lateral safeguards operate to give protection to the party against whom the evidence is led. They include the discovery proposals, the procedure for producing witnesses and documents and the exclusionary discretions.

(c) Inter-relation of other proposals. Proposals in different areas have an effect on each other. The proposals on judicial notice, for example, allow greater use than at present of material not formally proved in evidence. If those proposals were altered to limit their scope, consideration would have to be given to relaxing the proposed rules of admissibility that apply to formal evidence - in particular, those relating to hearsay and opinion evidence. The proposal to deal with evidence obtained illegally applies to confessions by suspects and forms part of the package of proposals dealing with policy issues that have to be addressed in proposals for the admissibility of confessions. Should the proposals for hearsay evidence be tightened, consideration would have to be given to the proposals dealing with the privilege of witnesses to object to answering questions on the ground of the risk of self incrimination. For reasons discussed below, [16] if the right of an accused to make an unsworn statement were abolished or qualified by a requirement that leave be obtained, consideration would have to be given to the power of the trial judge to comment on the failure of the accused to give any evidence. [17] The rules of privilege need to be borne in mind when considering rules to control witnesses refreshing their memory from documents. The rules on the admissibility of evidence going to credibility must be borne in mind when considering the rules for dealing with a witness unfavourable to the party who called him and the approach to be taken where the accused gives evidence, whether sworn or unsworn.

(d) Packages for particular topics. On the topic of admissions and confessions of suspects, a package of proposals replaces the existing voluntariness test. [18] As to evidence of identification by eye-witnesses, a proposal is advanced combining rules of admissibility with provisions detailing warnings and directions to be given to juries. In the case of evidence relevant to credibility, cross-examination on such matters is tightened and the rules permitting evidence to rebutt denials given in such crossexamination are relaxed.

54. Accessibility of the Evidence Bill 1987. While legislation cannot be drafted on the basis that those who use it will not read the whole of it, it must be recognised that a comprehensive Evidence Act is a special type of legislation. It will be used during the running of court hearings with little or no opportunity for detailed research or lengthy deliberation. To make the proposed Bill more accessible, the interrelation of the provisions should be made as clear as possible. Several changes have been made to the Interim Report legislation to assist accessibility. Firstly, headings have been revised. Secondly, in the case of the rules of exclusion, the exceptions refer back to the relevant rule of exclusion or, where relevant, to more than one. The Interim Report legislation referred to those rules using section numbers - for example, 'sub-section 55(1), 65(1) and ... do not apply'. The legislation has been changed to cross-refer by using short descriptions for example, 'the hearsay rule, the opinion rule and ... do not apply'. Finally, reference can be made by the rule of exclusion to the exceptions to it. Two options have been tested: including the details in the legislation and developing the use of footnotes. The latter approach is preferable. It is shorter and avoids distracting and confusing the reader of the legislation.

Application of the Evidence Bill 1987

55. Commonwealth, State and Territory laws. A federal court sitting in a State or Territory applies the laws of evidence and procedure that apply to State or Territory courts sitting in those parts of Australia. [19] In addition, many federal laws make provision of an evidentiary kind: the chief of these are the Evidence Act 1905 (Cth) and the State and Territorial Laws and Records Recognition Act 1901 (Cth). [20] The Commission has not, at this stage of the reference, exhaustively examined specific federal legislation. It is necessary to reach decisions on what should be the laws of general application before critically examining specific legislation. Further, such an examination should be deferred until comprehensive legislation is enacted. Accordingly, existing federal laws dealing with evidence are preserved except in a few instances, primarily, those provisions found in legislation creating the relevant courts. These are set out in the proposed Evidence (Consequential Amendments) Bill 1987. [21] Subject to these exceptions the proposed Bill will have effect subject to inconsistent federal laws. On the other hand, State laws that, by virtue of the Judiciary Act 1903 (Cth), apply in federal courts at present should generally cease to do so. The need for certainty and uniformity dictate that the proposed Bill should prevail over inconsistent State and Territory laws [22] in proceedings in the relevant courts. The only exception of significance that is made relates to the provisions creating presumptions to facilitate the proof of documents, machine produced evidence and other evidence. It is not within the Terms of Reference to deal with the whole topic of presumptions - nor is it practicable to deal with those presumptions, common law and statutory, which come within the laws of evidence. [23] Consideration was given to the repeal of two Commonwealth Acts - the Evidence Act 1905 and the State and Territorial Laws and Records Recognition Act 1901. They contain a number of provisions facilitating the proof of official documents, seals, signatures and the like. They apply, however, in State courts as well as federal and Territory courts and must be retained. Some changes are made and these are included in the Evidence (Consequential Amendments) Bill 1987. [24]

56. Courts. The Commission's Reference is restricted to federal courts [25] and courts of the Territories. In brief, the federal courts are the High Court of Australia, the Federal Court of Australia and the Family Court of Australia. [26] The Evidence Bill extends to these courts in whatever part of Australia they are sitting. As to the courts of the Territories, two of these require special mention. The Northern Territory (although, consitutionally speaking, it remains a Territory subject to the power of the Commonwealth Parliament under the Constitution s 122) has been granted self-government. [27] Since 1978, executive authority in most matters (include the administration of justice) has been exercised by Territory Ministers. In view of this, it would be inappropriate for the Bill to apply to Northern Territory courts. The situation in respect of Norfolk Island is in some respects similar. A more limited form of self-government has been accorded that Territory. [28] The Commonwealth legislation can extend to it but the Commonwealth has undertaken not to extend its laws to Norfolk Island without prior consultation with the Island administration. The application of the Bill to Norfolk Island will, therefore, be a matter for such consultation. It has been drafted, however, without specifically excluding Norfolk Island.

57. Proceedings. The Evidence Bill applies, subject to specified exceptions, in all proceedings in federal courts and in courts of the Territories. [29] It applies whenever evidence is to be adduced, including in bail applications, interlocutory proceedings and proceedings heard not in open court but in chambers. [30] It applies, not only in ordinary trials (whether civil or criminal) but also in matters such as bankruptcy proceedings. [31] There are transitional clauses included to deal with hearings commenced but not concluded before the commencement of the Bill. [32]

Terminology

58. Giving, etc, evidence. Before considering the detail of the proposals, it is appropriate to make clear the sense in which certain words are commonly used in the proposed Evidence Bill 1987, and to explain some of the commonly used terms. Not all the definitions appearing in cl 3 of the Bill are explained here. Some are explained later, in the detailed consideration of the proposals to which they relate. The Bill is drafted on the basis that a witness in the witness box is I giving' evidence. The party who is questioning the witness (whether in examination in chief or in cross-examination) is 'adducing' the evidence that the witness is giving. It is the court's function to admit or refuse to admit the evidence so adduced. [33]

59. Meaning of 'proceeding'. The draft Bill classifies proceedings in three ways.

(a) Proceedings to which the Bill applies. This class of proceedings comprises all proceedings in courts to which the Bill applies. [34]

(b) Legal or administrative proceedings. For certain limited purposes, the Bill must refer to all proceedings in all courts, of whatever kind, including courts to which the proposals will not apply. It includes proceedings in federal, State, Territory and foreign courts and proceedings such as courts martial and coronial inquiries. [35] This definition is needed for a limited number of situations - for example, the admissibility of evidence of judgments; [36] the admissibility of evidence of a judge, arbitrator or juror of the reasons for his or her decision; [37] the compellability of judges. [38]

(c) Civil and criminal proceedings. A criminal proceeding is defined as a prosecution in a court (that is, a federal or Territory court) for an offence. It includes committal proceedings. All other proceedings in such courts are classed as civil proceedings. Civil proceedings include civil proceedings for penalties. [39]

60. Meaning of 'business'. The concept of a 'business' is central to two important reforms and rationalisations of the present law made by the Evidence Bill: the facilitation of proof of the contents of documents [40] and the provision of a hearsay exception for business records. [41] in some respects, the definition of 'business' included in the Bill reflects definitions commonly found in 'business records' legislation in all jurisdictions. [42] It includes the activities, wherever carried on, of government and of statutory corporations and the proceedings of parliaments and their foreign equivalents. [43] The policy considerations that are relevant to the proposals made in the Bill about the records of all these bodies are identical and there is little point in distinguishing between them for the purposes of the Bill.

61. Meaning of 'document' and 'public document'. Also central to these reforms is the concept of a 'document'. It is defined in the following way:

'document' includes -

(a) any thing on which there is writing; [44]

(b) a map, plan, drawing or photograph; and

and also includes a part of a document as so defined and a copy, reproduction or duplicate of a document or a part of a document; [45]

The definition includes all the methods available for storing information: ordinary writing, computer disks, computer tapes, microfilm, photocopies and the like. Documents that are part of the records of public bodies such as governmental and statutory authorities, and the records of parliamentary proceedings (Hansards) are included in a separate category of 'public documents' [46] because of the special provisions made about authentication and identification of these documents and about evidence of their contents. [47]

62. The trial process. Several definitions relating to the trial process need to be considered. First, references in the Evidence Bill to a judge in a proceeding are to the person before whom the proceeding is being held. [48] This may be a federal judge or, in the Territories, a judge or a magistrate. Secondly, where a party is giving evidence, for example, the accused in a criminal trial, provisions that apply or refer to witnesses apply or refer to the party. [49] Thirdly, the concept of the 'probative value' of evidence is defined in terms that correspond to the requirements in the Bill as to the relevance of evidence. [50] Finally, it should be noted that those provisions of the Bill that relate to a person who is being prosecuted for a related offence, chiefly the restrictions on competence and compellability, apply to co-accuseds by virtue of the definition of 'person who is being prosecuted for a related offence'. [51]

The commentary to the Evidence Bill

63. Structure. The commentary that follows is divided into chapters which follow the order of the proposed legislation. In each instance, the proposals of the Interim Report are set out. They are discussed in the light of the comments received and recommendations made for modifications to the Interim Report proposals. There is one exception to this structure - the commentary on the proposed exclusionary discretions. The discretions to exclude evidence of admissions obtained unfairly and evidence obtained improperly or illegally are considered in the commentary to the proposals on admissions. [52]

Footnotes

[1] eg hearsay evidence.

[2] para 46.

[3] See App, A. Regulations under the Evidence Bill 1987 are included. They relate to hearsay and conduct evidence. The latter was not included in the interim proposal.

[4] Pt III (cl 18-49).

[5] Pt IV (cl 50-3), Pt V (cl 54-119).

[6] In the case of admissions, there are several exclusionary rules with exceptions and a discretion has been added to exclude evidence unfairly obtained.

[7] Evidence to prove the contents of documents was dealt with as an admissibility question in the legislation in the Interim Report. That proposal has been revised and treated as a proposal prescribing methods of proving the contents of documents.

[8] It is developed from the present law and the Commission's proposals in ALRC 2, ALRC 22.

[9] In addition the trial judge, especially in criminal trials, will remain able to raise issues of admissibility.

[10] Pt IV (cl 120-140).

[11] Pt VI (cl 141-151).

[12] App A.

[13] See App A for suggestions.

[14] See also the rule in Hollington v Hewthorn [1943] 1 KB 587, a rule preventing evidence of convictions being used in civil proceedings to prove the facts on which they were based - see below, para 170.

[15] This safeguard is also provided in the case of evidence of conduct.

[16] para 93, 71.

[17] At a more technical level, in many instances, the proposed rules of admissibility require preliminary findings of fact to be made: whether a person is available, whether a document forms part or a business record. Proof of such facts is facilitated by allowing affidavits to be used and by providing special presumptions. Amendment to the rules of admissibility would require consideration of the facilitating rules and vice versa.

[18] para 158.

[19] Judiciary Act 1903 (Cth) s 79-80A.

[20] Other examples include Trade Practices Act 1974 (Cth) s 74; Family Law Act 1975 (Cth) s 62(5); Patents Act 1952 (Cth) s101; High Court Rules O 39, r 3, 14, 17; Federal Court Rules O 33, r 2, O 14 r 8; Family Law Regulations reg 63(12); Marriage Act 1961 (Cth) s 94(7); Crimes Act 1914 (Cth) s 24(d)(ii).

[21] See App A.

[22] Evidence Bill 1987 cl 15.

[23] See ALRC26 vol I, ch 2.

[24] App A.

[25] Federal courts are defined in the Acts interpretation Act 1901 (Cth) s 26(6).

[26] See para 3. The Terms of Reference do not include bodies that are not 'courts', eg a courtmartial. Under the Courts Martial Act 1985 (Cth), the laws of evidence of the ACT apply to court-martial proceedings. Thus in the event of the proposed legislation being enacted and applying in the ACT, it will apply to court-martial proceedings.

[27] Northern Territory (Self-Government) Act 1978 (Cth).

[28] Norfolk Island Act 1980 (Cth).

[29] cl 11. Exceptions are provided: hearings commenced before the commencement of the Act; sentencing proceedings; appeals from State and Northern Territory courts.

[30] cl 11.

[31] It does not directly apply in proceedings that are not held before a 'court', eg a court-martial see fn 26 above.

[32] cl 11(2).

[33] eg, evidence of a previous representation may be adduced by a party by calling a witness to give evidence of it.

[34] See above, para 57.

[35] cl 3, definition of 'legal or administrative proceeding'.

[36] cl 80-2.

[37] cl 111.

[38] cl 21.

[39] cl 3, definitions of 'civil proceeding' and 'criminal proceeding'. The question whether proceedings for contempt of such a court should be classed as criminal or civil is not specifically addressed: it was considered by the Commission in its reference on contempt of court.

[40] Pt IV, Div 2 and 3.

[41] See, in particular, Pt IV, Div 1, Subd C.

[42] See ALRC 26, vol II, App C, para 65, 94 for an account of this legislation.

[43] See cl 4 (definition of 'business'). It has been put to the Commission that it is inappropriate to speak of government activity as 'business'. The term, however, is used in that context - 'the business or government' - and has been used in existing legislation in the same context.

[44] This is defined by the Acts Interpretation Act 1901 (Cth) s 25.

[45] This definition is very similar to that recently included in the Acts interpretation Act 1901 (Cth) s 25, but that definition does not extend to photographs in certain circumstances.

[46] cl 3, definition of 'public document'.

[47] See cl 125(1)(f), 131. As with the definition of 'business', these extend to foreign public documents.

[48] cl 3, definition of 'Judge'.

[49] cl 3. Where appropriate, the general provisions are qualified by specific provisions dealing with the accused as a witness.

[50] cl 3, definition of 'probative value'.

[51] cl 3.

[52] The remaining discretion - to exclude evidence adduced by the prosecution where the prejudicial effect outweights the probative value - is not the subject of any specific comment. It exists under present law and its inclusion was not questioned in discussion or the Interim Report.

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5. Commentary - competence and compellability

Physical and psychological competence

Legal competence and compellability - general

Legal competence and compellability - Heads of State and Parliamentarians

Legal competence and compellability - judges and jurors

Legal competence and compellability - the accused

Legal competence and compellability - person charged with a related offence

Legal competence and compellability - spouse in civil trials

Legal competence and compellability - spouse and family of accused

Advice to witnesses

Footnotes

Physical and psychological competence

64. Interim Report proposals.[1] It was recommended in the Interim Report that as at present all witnesses should be regarded as psychologically and physically competent unless the contrary is shown. It was recommended, however, that the present indirect test of psychological competence (an understanding of the nature and consequences of the oath) should be replaced by a requirement that the witness understand the obligation to give truthful answers and be able to understand and respond rationally to questions. It was proposed that it be open to a court to rule at any time during a trial that a witness should not give evidence if it appears that the witness does not meet these requirements, This power should be exercisable generally and also in relation to particular evidence. The court was empowered to inform itself as it thinks fit. It was proposed that where a witness becomes unfit to continue, the evidence he or she has already given should not by reason only of that become inadmissible. It was made clear that a witness' physical disabilities should not affect his or her competence unless they could not be overcome or could not be overcome without undue cost or delay.

65. Responses and final recommendation. There was general support for the approach taken and it is recommended that, subject to some changes of detail, it should be adopted. A change has been made to the proposal that where a witness ceases to be competent during the giving of evidence, the evidence does not thereby become inadmissible. Argument could occur about whether the proposal, as drafted, applied where a witness died before concluding his or her evidence. [2] The clause has been amended to ensure that the evidence in that case does not thereby become inadmissible. Another matter that should be noted is that the proposal empowered the court to inform itself as it sees fit in resolving questions of physical and psychological competence. This approach was questioned [3] and the issue was raised whether the rules of admissibility should be made to apply to the inquiry. The Commission's view was and remains that they should not apply. Under the present law, where the issue arises, the judge conducts the investigation and the rules of admissibility do not apply. No problems have been identified and it is an appropriate approach where a judicial inquiry is involved. [4]

Legal competence and compellability - general

66. Interim proposal, response and recommendation. It was proposed in the Interim Report that, with the exceptions set out in the paragraphs that follow, all persons should be competent and compellable witnesses in both civil and criminal proceedings. This approach was not questioned and it is recommended that it be implemented.

Legal competence and compellability - Heads of State and Parliamentarians

67. Interim proposal, response and recommendation.[5] It was proposed in the Interim Report that the Sovereign, the Governor-General, State Governors and foreign sovereigns should remain non-compellable, as should Lieutenant-Governors and Administrators of States and Territories and members of legislatures while the legislatures (including committees) are sitting. [6] This proposal received general support and is recommended subject to one addition. The legislation should include a reference to joint sittings of parliaments. This has been added.

Legal competence and compellability - judges and jurors

68. Interim proposal - response and recommendation.[7] It was proposed that judges and jurors should not be competent to give evidence in a trial in which they are acting as judge or juror. Judges should not be compellable to give evidence, about proceedings in which they were involved, in other proceedings without the leave of the trial judge in the other proceedings. This proposal received general support and is recommended.

Legal competence and compellability - the accused

69. Interim Report proposal.[8] It was proposed that an accused should not be competent to give evidence for the prosecution and should not be compellable to give evidence as witness for him or herself or for a co-accused. Failure by the accused to give evidence should not be able to be used as an admission of guilt, but the trial judge should be able to comment on the effect of the accused's silence. Prosecutorial comment, on the other hand, should not be permitted.

70. Accused's competence, responses and recommendations. It is the law in most jurisdictions that the accused is not competent to give evidence as a witness for the prosecution. The interim proposal accords with this and is consistent with the underlying policy assumptions and objectives of the criminal trial. [9] It was put to the Commission [10] that, while an accused person should not be a compellable witness for the prosecution at his or her own trial, the accused should be competent and thus be able to give evidence for the prosecution if willing to do so. One example was given of a case where a formal admission was not sufficient. Sworn evidence bad to be given and could only be given by the accused. Such a case will be most exceptional. Rendering the accused competent to give evidence would tend to change the nature of the criminal trial. Traditionally it has been seen to be an accusatorial procedure in which the Crown is expected to prove its case without the accused's assistance. Such an approach is warranted by the concern to minimise wrongful convictions. The example given to the Commission does not warrant so substantial a change. From a practical point of view, situations in which an accused would willingly give evidence against himself or herself would be very rare and, therefore, such an approach would have little benefit for the prosecution. It is recommended that the interim proposal be implemented.

71. Comment on failure of accused to give evidence, responses and issues. The interim proposal was that the judge may comment on the failure of an accused person to give evidence but the prosecution may not. Some submissions urged that all be able to comment. [11] The law in all jurisdictions, except Queensland, is that the prosecutor is not allowed to comment. The interim proposal accorded with this. In most jurisdictions, the judge may comment and again the interim proposal accorded with this. It is necessary that the judge have the power to comment should the jury raise the question of the effect of the failure of the accused to give evidence. To allow the judge to comment but not the prosecutor is a sensible compromise. Comment requires great care. A frequently cited statement is that of Lord Parker in R v Bathurst[12] where he said that in the normal case

The accepted form of comment is to inform the jury that, of course, he (the accused) is not bound to give evidence, that he can sit back and see if the prosecution have proved their case, and that while the jury have been deprived of the opportunity of hearing his story tested in cross examination, the one thing they must not do is to assume that he is guilty because he has not gone into the witness box.

The following propositions can be derived from the decided cases in jurisdictions where judicial comment is allowed. First, the comment cited above should generally be adopted and departures from it allowed only in exceptional cases. [13] In addition, the comment must not

invite the jury, directly or indirectly, to assume guilt from the failure to give evidence, [14]

invite the jury to draw any inference it likes, [15] or

use the accused's failure to give evidence to bolster up a weak prosecution case. Adverse comment should not be made in that situation. [16] The failure to give evidence has no evidential value. [17]

The comment must inform the jury that the onus is and remains on the prosecution and that the accused is entitled to decline to give evidence. As to permissible adverse comment, it has been said that a case where such comment is permissible is that where the accused does not deny he or she was present in the incident, but his or her presence is capable of different explanations - one consistent with innocence and one consistent with guilt. [18] It may then not be improper to remind the jury that the accused could have provided an explanation, by his own evidence, but has not. It can be said to the jury - what evidence is there to support the theories? [19] Another approach is to say that the case of the Crown is not challenged by evidence - it is uncontradicted, [20] or that the inference of guilt is rendered less unsafe. [21] Where the legal burden of proof is on the accused, comment can be made that accused runs the risk of not being able to prove his or her case. [22]

72. Finally, the proposals introduce a change to the law that existed when the above statements were made which makes the task of making a proper comment more difficult. When those statements were made, an accused who made an unsworn statement could, in putting his or her case, attack the character of prosecution witnesses without having his own character attacked. Thus, the fact than an accused had, for example, prior convictions would not have deterred him from making at least an unsworn statement. The proposals on cross-examination of an accused on matters going to his credibility [23] are made applicable to the accused who makes an unsworn statement. Under the proposal, the scope for attacking the accused's character is limited but there may be cases where the possibility of such an attack would explain the accused's silence. The trial judge should not refer to such an explanation and would, therefore, need to consider very carefully what comment, if any, should be made.

73. Comment on failure of accused to give evidence - recommendation. It is very easy, in commenting on the failure of the accused to give evidence, to leave the impression that there is an onus of proof on the accused and that his silence points to his guilt. Great care is required. [24] A trial could miscarry, for example, if the person commenting overstepped the mark in comments about the accused's failure to give evidence. The interim proposal is recommended.

Legal competence and compellability - person charged with a related offence

74. Interim proposal. It was proposed [25] that a person charged with an offence related to an offence in respect of which another person is being tried should not be compellable to give evidence and should not be competent to give evidence for the prosecution unless, in exceptional circumstances, the trial judge gives leave. At present the law renders such a person competent and compellable to give evidence for the prosecution where he is to be tried separately or has pleaded guilty but has not been sentenced.

75. Need for a rule. Discussion of the proposal disclosed that practice varies between jurisdictions and judges. [26] It is desirable to formulate a rule to deal with the problem. There is an increased danger of perjury and wrongful convictions resulting from deals, or the pressure of self-interest. The view taken was that the dangers should be avoided wherever possible.

76. Responses and recommendations. The interim proposal required that leave could only be given in exceptional circumstances. This was criticised [27] as being too limiting. The Commission accepts this criticism. The critical questions are whether the witness is motivated to give false evidence to any degree and whether the proceedings against the witness can be concluded. The requirement of 'exceptional circumstances' has been deleted. Enacting a rule requiring leave is on any view a significant improvement on the present uncertain law. A change should also be made to the list of matters that the judge should consider which were set out in the interim proposals. One item should be deleted from that list - the reason why the prosecution of the witness had not been concluded. It may not always be relevant. If the topic is deleted from the inclusive list, it should not prevent it being considered should it be relevant in a particular case. [28] Subject to these changes, the interim proposal should be implemented.

Legal competence and compellability - spouse in civil trials

77. Interim Report proposals.[29] It was proposed that, in a civil trial, a spouse (but not a former spouse or a de facto spouse) should not be compellable to give evidence of marital communications. This proposal, if implemented, would not apply to custody, guardianship or wardship proceedings. It would not apply in proceedings in the Family Court.

78. Response and recommendation. In all jurisdictions there is a privilege protecting marital communications. The Commission has not identified any difficulties caused by such a privilege and it is supported by the relevant policy concerns, particularly the public interest in avoiding the disruption of marital relationships. The proposal should be implemented.

Legal competence and compellability - spouse and family of accused

79. Interim Report proposal. It was proposed that, in a criminal trial, the spouse of an accused (including a de facto spouse but not a former spouse) and the accused's parents and children should be compellable witnesses for the prosecution. [30] It was proposed, however, that they should be able to be excused from giving evidence where the court finds that the harm that would be caused directly or indirectly to the individual witness or the relationship between the witness and the accused, should the witness give evidence, outweighs the desirability of receiving the evidence. Applications for exemption should be dealt with in the absence of the jury. It was proposed that comment be allowed on the objection, the decision of the court and the failure of the witness to give evidence, except by the prosecutor. [31]

80. Response. There was a division of view among commentators as to whether and in what circumstances a spouse, parent, child or de facto spouse of an accused should be compellable to give evidence for the prosecution against the accused. The proposal that the court have a guided discretion to excuse persons coming within these categories is similar to the approach taken in South Australia and in Victoria (but not for a de facto spouse). [32] This discretionary proposal received substantial support but was opposed either totally [33] or so far as it extends beyond spouses, [34] or spouses and de facto spouses. [35] The proposal differs from the approach in a number of States where spouses only can be non-compellable witnesses. The legislation in those States makes spouses compellable witnesses for the prosecution in the trial of specified offences against the other spouse. This approach excludes consideration of relevant issues - the gravity of the offence or its breach, the state of the relationship, the importance of the evidence or the harm that might flow from giving the evidence. [36] The Commission is of the view that the discretionary proposal strikes the appropriate balance of policy considerations. In the Interim Report it identified the policy concerns to be, on the one band, the desirability, in the public interest, of having all relevant evidence available to the courts and, on the other hand, the undesirability in the public interest 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, and

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 punishment upon those they love, betray their confidences, or entail economic or social hardships.

These policy concerns warrant extending the protection beyond the spouse of the accused but not to all witnesses. The Commission's view is that the categories chosen include appropriate family relationships.

81. The opposition to the proposal has come principally from those involved in the prosecution of offences. Their understandable concerns are that such a proposal has the potential to reduce evidence available for the purpose of proving the commission of criminal offences and has the potential for wasting time. Enquiries have been made in Victoria and South Australia, where similar legislation has applied for several years, about the operation of that legislation. Information obtained indicates general satisfaction with the approach and that the issue rarely arises and when it does rarely occupies much time. [37]

82. Recommendation. While reaffirming the interim proposal, the Commission recommends an alteration to it. The original proposal required that the court consider whether the 'harm that would be caused . . .' to the witness or the relationship by the giving of evidence outweighed the desirability of obtaining the evidence. Strictly speaking this would prevent the court exempting the witness where the court could not be satisfied that harm would be caused but was satisfied that there would be a grave risk of harm. In Victoria and South Australia the legislation is directed to the risk or likelihood of harm. It is as relevant to consider the risk of harm as it is to consider whether actual harm will result. Apart from this change, no changes of substance are recommended to the formulation of the legislation. [38] In the submissions received, there was no criticism of the detail of the proposal. Consideration was given to introducing specific reference to the public interest in receiving the evidence but this would only confuse matters. The legislation identifies the matters relevant to the public interest concerns - on the one hand, harm or risk of harm to the witness and the relationship and, on the other, the desirability of receiving the evidence.

83. Finally, there was criticism of the proposal preventing comment by the prosecution on the objection, the decision of the court, of on the failure of the witness to give evidence. [39] For reasons similar to those advanced above [40] on the question of comment on the failure of the accused to give evidence, the interim proposal is recommended.

Advice to witnesses

84. Interim proposal and recommendation. It was also recommended in the Interim Report that where it appears that a witness may be able to seek exemption the court should have to satisfy itself that the witness is aware of his or her right to do so. This proposal was generally supported and is recommended.

Footnotes

[1] ALRC 26 vol I, para 521-24.

[2] P Waight, Submission 32 (3 December 1985) 1.

[3] eg Law Society of South Australia, Submission 85 (8 May 1986) 1.

[4] Cross on Evidence, para 8.10; Chadbourne 1976, vol 2, para 487.

[5] ALRC 26, vol I, para 526.

[6] As to diplomats, they are competent but not compellable witnesses: Diplomatic Privileges and Immunities Act 1967 (Cth) s 7(l). The operation of this Act is preserved under the proposals see cl 14.

[7] ALRC 26, vol I, para 527.

[8] id, para 528.

[9] para 35ff.

[10] DPP (Cth) Submission 36 (January 1986) 2.

[11] eg The Hon Justice CW Pincus, Federal Court of Australia, Submission 1 (November 1985) 5-6; DPP (Cth) Submission 36 (January 1986) 3. This was originally the view of the Australian Federal Police (AFP, Submission 60 (5 March 1986) 1) but that view was later withdrawn: AFP, Submission 86 (14 May 1986) 1.

[12] [1968] 2 QB 99,107.

[13]R v Mutch [1973] 1 All ER 178, 181-2.

[14] R v Bathurst [1968] 2 QB 99; R v Sparrow [1973] 2 All ER 129.

[15]Tuckiar v R [1934] HCA 49; (1934) 52 CLR 335.

[16]Waugh v R [1950] AC 203, 212; R v Sparrow [1973] 2 All ER 129.

[17]R v Sparrow [1973] 2 All ER 129,135; R v Power [1960] QSR 111, 130.

[18]R v Sparrow [1973] 2 All ER 129.

[19]R v Davison [1972] 3 All ER 1121, 1125.

[20]R v Power [1960] QSR 111.

[21]May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654, 658-9.

[22]R v Bathurst [1968] 2 QB 99, 108.

[23] cl 98 and para 179ff below.

[24]R v Waugh [1950] AC 203, 211.

[25] ALRC 26, vol I, para 528.

[26] In particular, an example was given of one trial judge who refused to follow the English practice (R v Pipe (1967) 51 Cr App R 17; R v Turner (1975) 61 Cr App R 67, 78) that it is generally a serious irregularity to receive the evidence of the co-accused before the prosecution against him has been concluded.

[27] eg DPP (Cth) Submission 36 (January 1986) 2, who did not object to the proposal provided it was not limited to exceptional circumstances.

[28] eg if the delay has a connection to the motive of the witness to give false evidence, it can be considered in that context. Note also, one item on the list was whether the person had a motive to misrepresent. It is also relevant whether the person appears to have such a motive: H Woltring, Attorney-General's Dept (Cth) Submission 109 (9 October 1986) 1.

[29] ALRC 26, vol I, para 537, 898-9. As to Family Court see cl 14.

[30] ALRC 26, vol I, para 529-39.

[31] The law varies at present, but in most jurisdictions the prosecutor may not comment: ALRC 26, vol II, App C para 11.

[32] Similar proposals were recommended in ALRC 31 para 313ff; ALRC 30 para 70ff.

[33] eg Northern Territory Police Submission 5 (14 November 1985) 1-2; Northern Territory Department of Law Submission 4 (18November 1985) 1. There is no exemption for any witness in the Northern Territory.

[34] DPP (Cth) Submission 12 (3 December 1985) 12-13.

[35] Australian Federal Police, Submission 86 (14 May 1986) 1. Views in the Attorney-General's Department differed: opposed - John Ley, Attorney-General's Department Submission 93 (20 June 1986) 2; not opposed - Messrs Jones and Gregory, Attorney-General's Department Submission 65 (18 March 1986).

[36] Also, to formulate a satisfactory list of offences for all federal and Territory courts is a very difficult and arbitrary task.

[37] Hon Justice H Zelling, Supreme Court of South Australia, Submission 89 (2 June 1986); Bon Justice P Murphy, Supreme Court of Victoria, Submission 90 (4 June 1986); Hon Justice RE McGarvie, Supreme Court of Victoria, Submission 101 (14 July 1986); Hon Judge DM Brebner, District Court of South Australia, Submission 94 (16 July 1986); Mr JM Dugan, Chief Magistrate, Magistrates Court of Victoria, Submission 120 (29 August 1986); Mr B Kayser, Criminal Bar Association (Vic) Submission 72 (20 March 1986) 1. See also ALRC 26, vol I, para 529.

[38] Some minor changes were made in the inclusive list of matters to be considered in the exercise of the discretion.

[39] DPP (Cth) Submission 36 (January 1986) 3; Australian Federal Police, Submission 60 (5 March 1986) 1.

[40] para 7ff.

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6. Commentary - sworn and unsworn evidence

Oaths and affirmations

Unswom evidence of the accused

Dissent in relation to unsworn statements

Footnotes

Oaths and affirmations

85. Interim Report proposal.[1] It was proposed that the requirement that witnesses [2] be sworn should continue. The religious oath should be retained, but witnesses, as in several jurisdictions, should have the option of affirming. The method of taking the oath or making an affirmation should be simplified, including by prescribing a form of oath and affirmation. Failure to comply with the formal requirements, however, should not invalidate the oath or affirmation. The trial judge should be required to advise witnesses of their rights.

86. Responses and recommendations. Few comments were received on the optional approach proposed. Of those who commented, views were divided about whether the religious oath should be retained. The principal argument advanced [3] for abolition of the oath was that at present where a witness affirms his or her evidence tends to be devalued. The witness is seen to opt out of the religious oath. This has certainly been true in States like Victoria where the witness had to establish a basis for not swearing a religious oath. It was argued that if the religious oath is retained, the potential for irrational discrimination can only be avoided if the options are treated as equal options. The proposed legislation, in terms, treats the oath and the affirmation as equal options. In complying with the legislation the presiding judge or court officer will ask the witness which option he wishes to exercise - thus treating them as equal options. The Commission recommends adoption of the Interim Report proposal. The credibility of the trial system depends in part on the courts making and appearing to make a serious attempt to find the facts. The swearing of witnesses has a direct bearing on that attempt. [4]

Unswom evidence of the accused

87. Interim Report proposal.[5] The right to make an unsworn statement existed before the accused was given the right to give sworn evidence approximately 100 years ago. Both rights have remained in existence until recently, in all jurisdictions. In the Interim Report it was proposed that an accused should retain the right to make an unsworn statement (including by reading a prepared written statement). As at present, the accused should not be liable to cross-examination on an unsworn statement. It was proposed that:

(a) Rules of admissibilty. The unsworn statement should be treated as evidence and subject to the rules of evidence (including rules as to admissibility).

(b) Perjury. The perjury provisions of the Crimes Act 1914 (Cth) should apply to the giving of unsworn evidence by the accused.

(c) Legal assistance. Where the accused is legally represented, he or she should be allowed legal advice in preparing unsworn evidence and assistance in giving it. If the accused is unable to read, the lawyer representing the accused should be able, with leave of the court, to read the statement. With leave of the court, the lawyer representing the accused should be able to question the accused after the conclusion of the unsworn evidence.

(d) Additional sworn evidence. Where unsworn evidence has been given, sworn evidence should not be allowed except with the court's permission and the protection against cross-examination should be removed in that event.

(e) Advice of rights - presence of jury. The accused should be advised of his or her rights in relation to giving sworn and unsworn evidence in the presence of the jury. If unrepresented, the accused should be advised in the absence of the jury that sworn evidence may be more persuasive than unsworn evidence and that the law of perjury applies to unsworn evidence given by an accused.

(f) Use against co-accused. The unsworn evidence of one accused should not be capable of being used as evidence for or against another co-accused.

(g) Comment. The trial judge should be able to comment on the failure of the accused to give sworn evidence, but not so as to suggest that the giving of unsworn evidence is due to an awareness of guilt or that unsworn evidence is necessarily inferior to sworn and cross-examined evidence. The prosecution should not be able so to comment.

(h) Evidence relating to the credibility of accused. Evidence relevant to the credibility of an accused who gives unsworn evidence should be admissible to the like extent as it would be against an accused who gives sworn evidence.

88. Recent developments. A number of developments have occurred in the area since the Interim Report was published.

(a) Abolition in the Northern Territory and South Australia. The right was abolished in South Australia in 1985. [6] It should be noted that this was in spite of the thorough investigation by a Parliamentary Committee approximately two years earlier which had recommended retention. The right has also been abolished in the Northern Territory. [7] Different views were expressed about the effect of abolition of the right. People involved in the prosecution of offences argued there were no difficulties and no unfairness caused to the accused. Those who have acted for accused persons said that many accused were seriously disadvantaged. They stated that many accused, particularly Aboriginals, had to stand mute because of their inability to cope with the criminal trial.

(b) Retention - Law Reform Commission of Victoria.[8] The majority supported retention of the right. As in this Commission's Interim proposal, the Victorian Law Reform Commission sought to impose the rules of admissibility. It distinguished, however, between-

the represented accused: unsworn 'evidence' could be presented in question and answer form only but not subject to cross-examination; and
the unrepresented defendant: he or she could continue to make an unsworn 'statement'(presumably not as 'evidence').

Nothing was said about liability to perjury and presumably the accused is not liable to perjury if he or she lies in giving unsworn 'evidence' or an unsworn 'statement'. These proposals have been enacted with some changes. [9] In particular, the represented accused must give answers to questions from the dock unless the judge gives leave. [10]

(c) Retention - New South Wales Law Reform Commission Report.[11] The recommendations were similar to this Commission's Interim Report recommendations. Among other things, the New South Wales Law Reform Commission recommended the application of rules of admissibility to introduce controls. It also recommended that:

* the maker of the unsworn statement should not be liable to perjury proceedings in the event of false evidence being given;

* counsel should not be permitted to read the statement when the defendant is unable to do so;

* the prosecutor should, with leave, be able to comment on the failure to give sworn evidence where the accused, for example, gives false reasons for making an unsworn statement. [12]

The Commission also proposed that the right be extended to summary trials. It seems that in practice some magistrates allow unsworn statements anyway.

(d) Retention - Shorter Trials Committee.[13] This Committee was not persuaded that the existence of the right of an accused to make an unsworn statement either lengthens trials or leads to charges being defended which otherwise would be pleas of guilty. On that basis, the question of abolition or modification was outside the scope of the Committee's inquiry. Even if so persuaded, the Committee favoured retention of the present right and procedures in the interests of fairness and justice. [14]

(e) Retention - Australian Law Reform Commission. The Report on Aboriginal Customary Law recommended retention but in a discretionary form. [15] The proposals were to apply throughout Australia and in State courts. They were to apply, therefore, in jurisdictions where the right is not available. The discretionary approach was, therefore, necessary to avoid discriminatory proposals. [16]

89. Abolition or retention - responses.[17] Probably no issue polarises opinion more than the issue of whether the accused's right to make an unsworn statement should be abolished. This was again a feature of the discussion of the proposals in the Interim Report. Much was said about the retention or abolition of the right. Submissions opposing the right to make an unsworn statement came mainly from those involved in the prosecution of criminal offences. Submissions supporting the unsworn statement came particularly from those involved in the defence of accused persons and from civil liberties groups. In some cases, submissions urging abolition were based on little more than assertion or tended to beg the question (for example 'an anachronism'; 'all witnesses should be crossexamined').

90. Arguments for abolition. The arguments were canvassed in detail in the Interim Report. [18] It is not proposed to repeat them all. Certain arguments, however, tended to be raised more than others.

(a) Device to assist the guilty.[19] In considering whether abolition is required it must be asked whether an excessive number of accused persons who give unsworn evidence are wrongly escaping conviction. This is a question that is difficult to answer. Some assert that it is the case but the view is very subjective and requires the assumption to be made that the accused who was acquitted was guilty - in spite of the presumption of innocence and the fact of acquittal. The empirical evidence available does not support the argument that an accused who makes an unsworn statement has a better chance of acquittal than the accused who gives sworn evidence. [20] A few cases have received publicity recently where people accused of serious crimes have made unsworn statements and been acquitted. Some critics have cited them as examples where the accused has 'got off'. Such a complaint assumes the guilt of the person acquitted. It also assumes that the system is not supposed to tolerate acquittals of the guilty. Or it is said that particular accuseds abused the right because they should have submitted themselves to cross-examination (that is, they must prove their innocence) or because the accused did not lack the ability to handle crossexamination (that is, that that is the only ground on which it is proper for an accused to make an unsworn statement). In any event, to fairly assess these alleged abuses, the full reasons for making the unsworn statement need to be known and they are not known. Finally, accepting that a few people abuse the fight, is that a valid basis for removing a right from everyone?

(b) The accused who gives evidence should be cross-examined.[21] It is not enough to assert that the accused who gives evidence should be crossexamined. That is the very question at issue. It is true that other witnesses are cross-examined. The risk, however, of an accused being wrongly convicted because of an inability to handle cross-examination and the accusatorial nature of the criminal trial support the approach of distinguishing the accused witness from other witnesses. The usefulness of cross-examination was also urged as a reason for abolishing the right to make an unsworn statement. It is said that it is only by cross-examination that 'the truth' is exposed. But it is not the only way of testing what an accused person says in giving unsworn evidence and is not necessarily the best. Each allegation under the Commission's recommendations (especially because only admissible evidence will be allowed in the unsworn statement) must be put to the prosecution witnesses and can be rebutted by whatever other admissible evidence is available to the prosecution. And the value of cross-examination should not be over-estimated. It is not axiomatic that evidence tested by cross-examination is more reliable than evidence which is not nor that the truth will emerge. Many reasons may cause an accused to perform badly in the witness box. It is by no means certain that the tribunal of fact, be it judge, magistrate or jury, can differentiate between them. Being guilty, and being a bad witness, can be easily confused. Lord Devlin has said:

The great virtue of the English trial is usually said to be the opportunity it gives to the judge to tell from the demeanour of the witness whether or not he is telling the truth. I think that this is overrated ... I would adopt in their entirety (this being the highest form of judicial concurrence) the words of Mr Justice MacKenna:

I question whether the respect given to our findings of fact based on the demeanour of the witness is always deserved. I doubt my own ability and sometimes that of other judges, to discern from a witness' demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part, I rely on these considerations as little as I can help. [22]

91. Arguments for retention.[23] The Commission received a number of submissions arguing that the right is needed. There is little doubt that there are many accused people who run a real risk of convicting themselves if they give sworn evidence - not because they are guilty but because they will be poor witnesses. This problem is not restricted to the tribal Aboriginal or to the inarticulate, poorly educated defendant who will have difficulty coping with cross-examination both frequently cited examples. A person may be a poor witness and not be believed because he or she cannot maintain a consistent line of thought and so will appear to be evasive. The accused's health may be poor and such as to make it difficult to sustain the enormous effort required to give sworn evidence and cope with cross-examination. At the 1985 International Criminal Law Congress, Dr Bray, the former Chief Justice of South Australia, said:

I have expressed myself recently in favour of the retention of the right to make an unsworn statement. But it looks as if, in South Australia at any rate, it is on the way out. If it goes there will be more convictions, Some of these will be convictions of the guilty and I fear that there will be a great danger that some will not. The evidence of the accused comes at the end of the trial. In many, probably in most, cases he is the last witness the jury will hear. His evidence will be ringing in their ears when they retire. Its deficiencies will be prominent in their minds. Many people make very bad witnesses. They may be surly, evasive, argumentative, imprecise, cunning or stupid, or more than one of these things. The attention of the jury may be diverted from the question, 'Is the accused guilty?' to the question, 'Is the accused a trustworthy witness?' These questions are not the same, The deficiencies of his evidence may cast into the shade the deficiencies of the Crown case, particularly if that is a case of circumstantial evidence. The onus of proof may be unconsciously inverted.

There are other situations not related to the personal characteristics of the accused. The accused, for example, may know that there are allegations of misconduct and that the prosecution intends to use them in cross-examination. The accused knows that they are untrue. The accused knows that they can be denied but fears that the 'mud may stick'. The right to make an unsworn statement enables the case of that accused to be presented without the risk of a wrongful conviction based on the threatened attack. An example was given in the public hearings of a bisexual married accused charged with rape. He had an alibi but questioning about it would have disclosed his homosexual activities which would have damaged his marriage and exposed him to the risk of further criminal proceedings. Making an unsworn statement enabled him to present his case and avoid those consequences. If be had not had that right he would have had to remain silent. [24]

92. A consequence of abolition - judicial comment on failure to give evidence. if abolition of the right were to be considered, then further consideration would have to be given to the proposal permitting judicial comment on the failure of the accused to give any evidence. [25] If the right were abolished, it is likely that more accused will not give an evidence. [26] On present authorities, where the accused gives no evidence, it can be permissible to comment that the failure to give evidence renders the inferring of guilt less unsafe or that the absence of evidence from the accused materially weakens the hypotheses which the accused argues are consistent with innocence. The reasoning involved is presumably along the lines that:

the accused was present at the crime;

he or she is capable of giving an innocent explanation if there is one;

in not giving evidence, the accused is not exercising the right to remain silent, but is concerned at what will happen if he or she did give evidence (sworn or unsworn). That is, he would have to admit that there was no innocent explanation or the innocent explanation could not be supported adequately.

This reasoning may be criticised on the ground that it assumes the accused is not merely exercising the right to silence in the absence of evidence of any reason for remaining silent. The reasoning may, however, be seen as a reasonable compromise if the accused can make an unsworn statement - for protection is given from cross-examination. If, however, the accused's choice is limited either to giving sworn evidence subject to cross-examination or giving no evidence at all, the choice not to give evidence may be based on the fear that, though innocent, the accused cannot handle cross-examination. In other words, abolition of the unsworn statement would introduce another explanation for silence. In those circumstances, there would be a strong case for banning adverse comment and forbidding any use to be made of silence. [27]

93. Abolition or retention views of law reform bodies. The question of abolition or retention has been discussed by the State law reform bodies referred to above. The Victorian Law Reform Commission recommended retention of the right. In its Report it referred to new arguments for abolition.

(a) A cause of lengthy cross-examination? It was alleged that the use of unsworn statements has brought with it extensive and wide ranging crossexamination by defence counsel of witnesses for the prosecution. [28] While the Victorian Law Reform Commission [29] agreed with the observation that, in some cases, statements have been preceded by extensive wide ranging cross-examination of prosecution witnesses, it did not investigate the reason for the connection. The Commission's research did not demonstrate whether this is a major problem or not. The Commission suggested that it may be more a question of the style of the counsel involved. It made the point that there are other ways of dealing with prolix and inefficient cross-examinations. [30] The proposal in this Report tightens the rules on cross-examination. [31]

(b) Confusion to jurors. It was alleged that the unsworn statement is confusing to jurors, both in respect of the weight to be accorded it and its status in a trial in which all other witnesses enter the witness box, give evidence on oath or after affirmation and are cross-examined. [32] The Commission addressed the argument [33] and expressed the view that the jury's understanding will be aided and will be adequate if the jury is present when the accused is advised of the option and if the judge is permitted to comment at the end of the proceedings. Similar proposals are included in this Report.

The New South Wales Law Reform Commission, in recommending retention of the right raised additional arguments for retention including:

focussing jury attention on the real issues in the trial; [34]

enabling accused persons to participate in the trial on their own terms; [35]

abolition would have the effect, in many cases, of forcing the accused to give sworn evidence and subjecting himself or herself to crossexamination. This might have the consequence of placing a probative burden upon the accused person. The emphasis in the trial might be shifted to become 'what does the accused have to say about this allegation?' [36]

it cannot be demonstrated that an accused necessarily obtained any benefit from abusing the right; [37] and

assuming sophisticated criminals resort to the right and obtain an unjustified advantage, that is not a persuasive argument for abolition. The same can be said about many rights conferred by the law in civil and criminal matters. There are persons who have a legitimate need for it. If others abuse it, we do not necessarily abolish it. [38]

94. Abolition or retention - recommendation. By majority, the Commission recommends retention of the right of an accused to make an unsworn statement. [39] The right must be considered in context. Reference should be made to the Commission's analysis of the nature and purposes of the criminal trial. [40] It should be emphasised that, where the unsworn statement is retained, our system is one in which, at all stages, the accused is free to be silent or speak and, when he or she does speak, can do so without being obliged to answer any questions. The right is thus central to the balance that is struck in the criminal trial. At the trial, the accused has three choices - to be silent, to make an unsworn statement or to give evidence on oath and be subject to cross-examination. The accused can decide which course will best present his case. It directly addresses the problem of minimising the risk of wrongful conviction. The accused decides on how the defence can be best presented. The accused and his or her legal advisers are in the best position to do so. At the same time, it must be remembered that the exercise of the right carries the disadvantage for the accused that the evidence given is not on oath and has not been tested in cross-examination and this will be seen by the judge and jury. The proposal will maintain that situation and the trial judge may comment on the choice made and the relevance of the lack of cross-examination and the unsworn nature of the evidence to the assessment of the accused's evidence. In the view of the majority, a case for abolition of the right is not made out and there is a strong case for retaining the right. At the same time, there are matters of detail relied upon by those who would abolish the right that require attention.

95. Recommendations - reform. The accused can, at present, introduce irrelevant material and can lie and attack the character of prosecution witnesses with impunity. These issues were addressed in the Interim Report and resulted in significant controls being imposed. In the light of comments received and the consideration given by other law reform bodies, the following additional changes to the interim proposals are proposed. They will impose further restrictions on the right:

(a) Questioning of the accused. The Interim Report proposal permitted the accused's lawyer to question the accused if the court gave leave. It was intended to enable the accused to be prompted about matters omitted from the statement. Submissions were received [41] that it should be expressly restricted to that case. This has been done. One member of the Commission, [42] however, considers that the legislation should permit the legally represented defendant, as an option, to give unsworn evidence by means of non-leading questions and answers, as if giving evidence in chief. He considers that this method will best suit some defendants and should not be excluded. In his view, any danger that it would blur the distinction between sworn and unsworn evidence, to the disadvantage of the Crown, would be more than offset by the opportunity thus given to the prosecutor to object to a question, and obtain a ruling of the court on it, before it is answered, thereby considerably reducing the risk of inadmissible evidence being given deliberately or unintentionally.

(b) Control of content. The Interim Report did not contain proposals for specific procedures to be used to control the content of the unsworn evidence. The rules of admissibility were to apply and the view was taken that the prosecutor could object and the trial judge was in a position to control the situation. [43] Concern has been expressed on this point, however, and, to facilitate the application of the rules of admissibility to the unsworn statement, a provision has been included in the Bill to empower the court specifically to direct the production to the court or some other party of the document, if any, to be used by the accused.

96. Other issues - application of rules of admissibility. The interim proposal made the rules of admissibility apply by treating the unsworn statement as evidence. The question was raised whether the proposed legislation should expressly state that the rules of admissibility apply. This has not been done because it would then be necessary to make similar references in other parts of the legislation. Instead, a specific definition of 'evidence' to include unsworn evidence has been included. It is of particular importance that the rules of relevance apply to enable the content of the unsworn evidence to be controlled. It should also ensure that the accused does not speak directly or indirectly of his reasons for giving unsworn evidence. Such evidence is not relevant. By making the rules of admissibility apply, however, the issue is dealt with adequately. [44]

97. Other issues - comment by the prosecutor.[45] Some submissions argued [46] that the prosecutor should be allowed to comment on the failure of the accused to give sworn evidence. At present the prosecutor cannot do so. Bearing in mind that the accused will, under the proposals, be advised of the choices in the presence of the jury, and cannot give reasons for the choice made, and bearing in mind that the judge may comment, it is not necessary to change the law to allow the prosecutor to comment. To allow the prosecution to do so would carry grave dangers. There is a fine line between what is and is not permissible comment. The inexperienced or overzealous prosecutor could overstep that line and cause the trial to be aborted. Further, by subtle use of the right to comment, the prosecutor could focus attention on the choice and shift attention from the burden of proof carried by the Crown to the question of the significance of the choice made by the accused.

98. Other issues - leave proposal. The argument has been put that if the right is retained, it should be qualified by requiring that the accused obtain leave from the trial judge. [47] This would be contrary to principle and extremely impracticable. It would involve an unprecedented change in the conduct of criminal trials. The trial judge would determine how the accused should present his or her case. There is no case to support such a change. The argument for change has to be that:

the right is being used by defendants who should not be allowed to use it and this is occurring at an unacceptable level;

in doing so, they are gaining an advantage to which they should not be entitled - that is, presumably, they gain acquittals when they should not.

The evidence available does not support either conclusion. The practical difficulties of a leave approach are also a major concern. First, it is necessary to decide what categories of accused persons should be able to obtain leave. A category suggested to the Commission is that of an accused who would be 'disadvantaged' by giving sworn evidence. Accepting that category for the purpose of argument, how will the judge determine the question? There will be at least the following problems:

What is meant by disadvantaged? Disadvantaged as compared with the accused's position if an unsworn statement were made? Disadvantaged as compared with the average accused, average member of society, average Aboriginal or average migrant?

The issue is not considered in a vacuum. Whether the accused will be 'disadvantaged' or not will depend upon the calibre of the person prosecuting, that person's style of cross-examination and that person's ethics. The 'disadvantage' may also depend on the extent to which the trial judge is willing to control cross-examination. Further, a decision will require an assessment of whether or not the jury will be able to make due allowance for any failings that the accused may or may not have.

How will the issue be determined? Will there have to be a 'dummy run' with an unsworn statement being made and then the prosecution crossexamining the accused?

The issue will require the accused's counsel to argue that the accused is stupid, inarticulate and suffers from other deficiencies. In addition, in explaining the client's difficulties, counsel will be informing the prosecution of the best ways to cross-examine the client if the application for leave fails.

A voir dire will be required. At a time when concern is being expressed about lengthy criminal trials, we should be reluctant to add to that problem by requiring a voir dire about whether or not the accused should be given leave to make an unsworn statement. This would be likely to arise frequently.

Views are polarised about the right of the accused to give unsworn evidence. This extends to the judiciary. Whether an accused is allowed to make an unsworn statement will depend in many cases on the judge allocated to the trial.

The option of a leave proposal was recently considered by two State Law Reform Commissions:

(a) Victorian Law Reform Commission. It considered the then South Australian proposal that the right be abolished but that the judge have a discretion to allow a defendant to make an unsworn statement. That proposal was limited to cases where the defendant, because of intellectual or physical handicap or cultural background, was unlikely to be a satisfactory witness in defence of the charge. The Victorian Commission resolved against this approach. It said it would place a particularly 'onerous, and often invidious, burden upon the trial judge to choose among those defendants who applied for what would be seen as a privilege. Such applications might take up a substantial amount of time. The exercise of discretion would, inevitably, give rise to appeals about its exercise. Even with clear criteria for exercise of the discretion these consequences would follow'. [48]

(b) The New South Wales Law Reform Commission. It also was opposed to the idea of a trial judge's discretion. [49]

It would be difficult to ensure that any such judicial discretion would be applied consistently. The exercise of the right should be left to individual persons and their legal advisers who are in a better position to assess the desirability of exercising it than a trial judge who, having no information about the particular accused person and the case intended to be presented, would be tempted to stereotype particular categories and races of people as deserving of the 'right' to make an unsworn statement. The Commission was reluctant to encourage the development of different 'classes' of people in the criminal courts.

99. Uniformity. In reconsidering the topic, the Commission has considered the issue of how best to achieve uniformity. At a general level, it is significant that the right has now been abolished in three States and the Northern Territory. In the Commission's view, however, the right should not be abolished and uniformity should be pursued with those four jurisdictions that retain the right. As to the rules that are to be applied to unsworn evidence, uniformity is difficult if not impossible to achieve. One course would be to follow the Victorian reforms which have been enacted. [50] The Commission however, is unable to recommend this. No proposal can claim perfection. In the Commission's view, the Victorian approach has some serious disadvantages.

(a) Unsworn evidence, unsworn statements. It purports to distinguish between unsworn evidence and unsworn statements. The unsworn statement has been properly treated in the past as part of the evidence but on many occasions trial judges have charged the jury incorrectly on the evidentiary status of the unsworn statement by saying that it is not evidence. Presumably, under the Victorian proposal, the unsworn statement will be part of the evidence but the legislation clearly states that it is not evidence. Confusion will follow from this.

(b) Question and answer only. The proposal for the accused who has legal representation is that a question and answer method be used. The distinction between the accused's unsworn evidence and other sworn evidence will thereby be blurred, conferring an advantage on the accused. On the other hand, to restrict unsworn evidence to question and answer presentation will prejudice the accused for whom the right must most clearly be retained - the accused overwhelmed by the situation (for example, the tribal Aboriginal) who can instruct his lawyer but is unable to say anything in court. In less extreme situations, it will prevent or render extremely difficult the presentation of the evidence from the accused who, through anxiety or inadequacy, cannot cope with the question and answer approach unless leading questions are used (which presumably is not generally allowed) but who could read a prepared statement. The New South Wales Law Reform Commission did not favour questioning of the accused by his counsel. That would be a departure from existing practices. There was also the concern that a major reason for retaining the right to make an unsworn statement is to enable the accused person to contribute on his or her own terms. [51]

The New South Wales Commission's proposal is more flexible and more closely resembles that which the Commission favours. As to points of difference:

(a) Perjury control. By majority [52] the New South Wales Law Reform Commission recommended that an accused not be liable to perjury charges in the event of false statements being made while giving unsworn evidence. [53] The majority was influenced by the rarity of prosecutions for perjury and the problems, as they saw it, for the counsel and judge in a trial in commenting on the situation. It also argued that counsel for the defence would be likely to use the fact that the accused was liable to perjury charges to attempt to strengthen the value of the unsworn evidence in the eyes of the jury. A judge might then feel inclined to make some comment but may be precluded from doing so. The submissions of counsel for the defence might be thought to mislead in view of the minimal risk of prosecution. The final reason given was that they did not think that many accused would be deterred from lying. The minority took the view that it was not right that an accused should be given the free opportunity to tell lies. Whether the law is enforced or not it performs a function, a declaratory function in stating that the making of a false statement is a crime. One of the dissentients [54] argued that the problem to be addressed would appear to be the reluctance to prosecute persons who give sworn evidence falsely. It might also be argued that to the extent that lawyers are involved in the preparation of an unsworn statement, the risk of a perjury charge being brought would encourage them to take additional steps to ensure that the client did not tell lies. The Commission favours the minority view. One of the major and frequent criticisms made of the unsworn statement is that the accused can lie with complete impunity. The Commission is of the view that this criticism must be addressed.

(b) Counsel reading the statement. The New South Wales Law Reform Commission recommended that counsel not be permitted to read the statement where the accused is unable to do so. It suggested that this would be undesirable in that it would be likely to blur the distinction between the lawyer's role as advocate and that of witnesses who give evidence in the case. [55] This limitation, however, would effectively prevent the most disadvantaged accused from having his account of events placed before the court. The Commission cannot agree with this result and recommends that, subject to leave of the court, the accused's lawyer be permitted to read the accused's statement.

100. Conclusion. Subject to the changes referred to above, it is recommended that the interim proposal be implemented.

Dissent in relation to unsworn statements

101. Abolition. One member of the Division, Justice Wilcox, is unable to agree with the majority recommendation for retention of the unsworn statement. He agrees that, if the unsworn statement is to be retained, the recommendations for reform made by the majority are desirable. [56] Their implementation ought to reduce the current problems surrounding the use of unsworn statements. But, in his opinion, the time has come for a more fundamental change; the unsworn statement ought to be abolished entirely.

102. The arguments for and against the retention of the unsworn statement were rehearsed at some length in the Interim Report. [57] It is not necessary to repeat the points there made. It is an historical fact that the right of an accused person to make an unsworn statement at his or her trial was first conceded at a time when the accused could not give evidence on oath. That limitation no doubt explains why it was that the courts were prepared to countenance such a stark departure from normal procedures; without such a procedure the accused would have been unable to put his or her own version of the facts to the jury. The limitation has been abolished. It does not follow that the entitlement which the limitation created ought also to be abolished. But the abolition of the limitation does enable consideration of the matter in terms of principle. [58]

103. It is a fundamental principle of the law of evidence that a court should be asked to act only upon the most reliable material. It is axiomatic that evidence which has been tested by cross-examination is more reliable than evidence which has not. This is not only - or even primarily - a matter of demeanour. Crossexamination provides the opportunity for the opposing party to test the probability of the witness' evidence being correct. Additional facts may be elicited which will demonstrate that the evidence is not, or is unlikely to be, correct. At the very least the evidence given by the witness will be placed in a fuller context; thus assisting the jury to assess its reliability. Of course, cross-examination is not necessarily destructive of evidence-in-chief. The additional facts and/or fuller context provided by cross-examination often increase the confidence of a court in the accuracy of the evidence-in-chief. Accepting that a tribunal of fact may rarely be totally confident that it has the whole truth of any contested matter, the fact is that cross-examination is the most effective forensic tool yet devised for getting at the truth. The proper administration of the criminal law is too important a matter for it to be acceptable, in the absence of powerful countervailing reasons, to put away that tool during any part of criminal trials. At a time when sophisticated crime, by intelligent and articulate criminals, is increasing rapidly it is increasingly difficult to justify the retention of an entitlement to put 'facts' before the jury which cannot be tested. It is one thing to concede, as the law does, the right to maintain silence and to put the prosecution to proof of its case, it is another matter to enshrine the right to mislead.

104. The major argument for the retention of the unsworn statement at a time when an accused person may give sworn evidence is that set out above: [59] the possibility that an inarticulate or confused, but innocent, accused person will give erroneous, damaging evidence or that his or her demeanour in the witness box will mislead the jury into a belief of guilt. These possibilities cannot be excluded; [60] just as it cannot be denied that an accused person may make an erroneous damaging statement, or create an unfortunate impression, in the course of making an unsworn statement. But, in the dissenting view, it does scant justice to the intelligence of the jury to regard these possibilities as being so likely as to justify such a marked departure from principle. The very rationale for the use of a jury in the trial of serious criminal offences is that the assessment of witnesses, and the findings of fact, are then made by a group of people - rather than one person - who bring to that task a diversity of experience. But the jurors all share one characteristic: although the range of their individual experience may vary, all members of the jury will have had to assess people. They will all know, almost certainly from personal experience, that some people are inarticulate and that most are sometimes confused. They will know what nervousness is. They will know that people from time to time, without intent to deceive, misstate facts. Counsel for the accused, being faced with an unfortunate admission by the accused under cross-examination, will have the opportunity to put to the jury that this was an innocent error. It is appropriate for the jury to determine whether it was.

105. The point is made, both in the Interim Report and above, about the absence of persuasive empirical evidence in respect of this matter of the effect of retention of the unsworn statement. It is most unlikely that there will ever be data sufficient to show whether there is a relationship between the rate of conviction of innocent persons and the Tate at which accused persons give sworn evidence. It is pointless to expect this. But, if there was a real problem of the nature suggested by the majority, one would expect that some cases could be cited - including from those which have been subject to later judicial or other inquiry - in which cross-examination had led to an unjust conviction. None has been, and none is known to the dissentient. Moreover, in two Australian jurisdictions - South Australia and the Northern Territory - the unsworn statement has recently been abolished. But there is no material in either jurisdiction to show that the rate of convictions has increased. In the absence of some information indicating a relationship between cross-examination and unjust conviction it is suggested that the matter should be resolved by the application of principle. [61]

106. Modification of majority proposal. Justice Wilcox also dissents in relation to a recommendation of the majority, if the unsworn statement is retained. This dissent concerns cl 28(2) of the Evidence Bill relating to comment upon the fact that the accused did not give evidence. Firstly, Justice Wilcox shares the opinion of Justice Roden of the New South Wales Law Reform Commission [62] that the prosecutor ought to have the same rights as counsel for another accused person to make a comment. The failure of an accused person to give evidence may, in the particular case, be a matter legitimately to be taken into account by a jury and, if so, it is wrong in principle to deny to the prosecutor an entitlement to make an appropriate comment raising that matter for the jury's consideration. Prosecutors are bound by accepted rules of conduct and there is no reason to doubt their integrity or judgment in the matter of a comment. The judge ran always correct a slip of exaggeration. It would only be in the most extreme case that an untoward remark would cause the trial to miscarry. The other matter with which Justice Wilcox disagrees is the prohibition upon the making of any suggestion that unsworn evidence is, by reason that it is not subject to cross-examination, necessarily less persuasive than sworn evidence. Evidence untested by cross-examination is necessarily less persuasive than the same evidence tested by cross-examination. There is no virtue in forbidding counsel and, particularly, the judge instructing the jury about a matter which every lawyer, and indeed every thoughtful observer, knows to be true; and difficulties are likely to arise if the jury asks a direct question about the matter. On the other hand it is correct that unsworn evidence, not tested by cross-examination, is not necessarily less persuasive than sworn evidence, tested by cross-examination, given by another witness. The former may have the ring of truth, the latter - perhaps as a result of the cross-examination may be patently false. The real concern, Justice Wilcox suggests, is to avoid a comment to the effect that the sworn evidence of the prosecutor's witnesses should necessarily be preferred to the unsworn evidence of the accused, simply because the latter is unsworn and (therefore) not subject to cross-examination.

Footnotes

[1] ALRC 26 vol I, para 571 ff.

[2] Other than persons called merely to produce documents.

[3] The Humanist Society of Victoria, Submissions 48, 58 (22/30 January 1986 and 27 March 1986).

[4] Above para, 30ff.

[5] ALRC 26, vol I, para 592ff.

[6] Evidence Act (Amendment) Act 1985 (SA) s 3. For earlier report recommending retention in South Australia, see Select SA Committee Report.

[7] Criminal Code (NT) s 360.

[8] VLRC 2.

[9] Crimes (Amendment) Act 1986 (Vic).

[10] id, s 5(a).

[11] NSWLRC 45.

[12] In ALRC 26 it was assumed such evidence would not be relevant and therefore not be admissible.

[13] Shorter Trials Committee Report.

[14] Id, para 7.78-7.88; recommendation 72.

[15] ALRC 31, para 604.

[16] Ibid.

[17] See ALRC 26, vol I, para 584ff.

[18] ALRC 26, vol I, para 584-591.

[19] id, para 588.

[20] ALRC 26, vol I, para 588; NSWLRC 45 para 3.4ff; VLRC 2 para 3.14.

[21] id, para 587.

[22] Devlin 1981, 63; see generally ALRC 26, id, 586 7.

[23] ALRC 26, vol I, para 566.

[24] In addition, if leave had to be sought in such a situation, the accused would have had to disclose the very matters that he or she reasonably did not wish to disclose - see para 98 below.

[25] above para 71.

[26] see para 88(a) above: also ALRC 26, vol I, para 587.

[27] Introducing a leave proposal (see below para 98) would also require reconsideration of the proposal on judicial comment.

[28] See generally VLRC 2 para 3.2.

[29] In the sample investigated, lengthy unsworn statements were not made: id, para 3.12.

[30] id, para 332ff.

[31] below para 179.

[32] VLRC 2 para 3.3.

[33] id, para 3.29ff.

[34] NSWLRC 45 para 4.11.

[35] id, para 4.11.

[36] id, para 4.2.

[37] id, para 4.14.

[38] id, para 4.14.

[39] One member of the Commission, Justice Wilcox, recommends abolition - see below, para 101ff.

[40] para 35ff.

[41] eg DPP (Cth) Submission 59 (12 March 1986) 2.

[42] The President.

[43] The issue of the procedure whereby the court might control the content of the unsworn statement was discussed in NSWLRC 45, para 4.28-4.32). No specific proposals were advanced. Reference was made to the views expressed in ALRC 26 (referred to above) with which it concurred.

[44] The provision enabling evidence relevant to the credibility of the accused to be adduced (cl 98) has been redrafted.

[45] DPP (Cth) Submission 12 (3 December 1985) 9-10 argued that the trial judge should be obliged to comment on the failure of the accused to give sworn evidence. In the Commission's view it is preferable to maintain a flexible approach. There will be cases where it may be preferable for the judge not to comment on the failure to give sworn evidence. A majority of the New South Wales Law Reform Commission took the view that there are enough instances of unnecessarily inflammatory comment to justify legislative statement of the standard beyond which comment becomes improper (para 4.60).

[46] eg DPP (Cth) Submission 36 (January 1986) 4; Australian Federal Police, Submission 60 (5 March 1986) 2. One Commissioner of the New South Wales Law Reform Commission (Roden J, id para 4.70) argued for the prosecutor having the right to comment. The majority view was that the prosecutor should not be permitted to comment. An exception was made for the situation where the accused gives reasons for making an unsworn statement. This apparently occurs in New South Wales although, elsewhere, such explanations are seen as irrelevant. Provided the rules of admissibility apply, the issue can be resolved using those rules to prevent the accused giving an explanation.

[47] eg DPP (Cth) Submission 12 (3 December 1985) 9-10; Submission 36 (January 1986) 3-4.

[48] VLRC 2 para 3.24.

[49] NSWLRC 45 para 4.14.

[50] See above para 88(b).

[51] id, para 4.29.

[52] 5 to 2.

[53] NSWLRC 45 para 4.18 to 4.23.

[54] Mr R Sackville.

[55] NSWLRC 45 para 5.8.

[56] With one exception: see para 106 below.

[57] ALRC 26, vol I, para 584-592.

[58] See above para 27-47, especially 37-44.

[59] Elaborated in the Interim Report, ALRC 26, vol I, para 586.

[60] The majority agrees that these undesirable consequences will occur if the unsworn statement is abolished. The consequence of error is conviction of the innocent. In the view of the majority, the question to be asked is why is such a serious consequence justified? In its view, complete abolition involves resiling from the fundamental policy objectives of the criminal justice system.

[61] Above para 35-47.

[62] NSWLRC 45 para 4.70.

[Return to Top]

7. Commentary - manner of giving evidence

General matters

General proposals

Examination in chief and re-examination

Cross-examination

Re-examination

Footnotes

General matters

107. Scope of interim proposals. The interim proposals dealt with matters relating to the questioning of witnesses - the order and form of questioning, limits on questioning, the use of documents in giving evidence and in questioning and like matters. They would, in federal and Territory courts, override any otherwise applicable State and Territory law that was inconsistent. The interim legislation did not provide, however, that the proposals were to be an exhaustive statement of the law. The principal reason for this was that the rules were of a procedural nature and are to be traced back to the power of courts to control their own proceedings. [1] It was thought that the topic could only be dealt with exhaustively by dealing with all matters relating to the control of court proceedings - including, for example, the right to begin, the order of witnesses and the right to re-open. Such topics are outside the terms of reference. [2] The Interim Report legislation, therefore, was drafted on the assumption of the continued existence of the courts' duty and power to control the proceedings and, save as expressly stated in that legislation, it did not define or limit those powers.

108. Scope of proposals - response and recommendations. Concern has been expressed, however, [3] that such an approach has disadvantages. It means that, theoretically at least, a federal judge sitting in a particular State may have to consider the new statute, any relevant State legislation and the common law. In most States and Territories there are some provisions which touch on matters dealt with in this part of the legislation. [4] In practice, however, this should not pose a problem, since where the statute deals with a particular matter it will prevail and be the only law to consider. The concern, however, can be, and should be, addressed by making the relevant Division of the Evidence Bill 1987 exclusive in its operation and by making it clear that:

subject to the specific provisions, the judge has a discretion to control the questioning of witnesses and ancillary matters, and

otherwise, the Division does not affect the judge's power to control the proceedings.

109. Relationship with rules of admissibility. From discussions of the Interim Report it appeared that the relationship between proposals dealing with the questioning of witnesses and those dealing with the admissibility of the evidence given by witnesses was not always understood. The proposals under consideration in this chapter simply control the manner of questioning. They do not control admissibility. For example, certain procedures have to be followed in questioning witnesses about previous statements. The admissibility of the evidence elicited by that questioning is dealt with elsewhere in the proposed rules of admissibility. [5] Again, in cross-examination a party is required to put to witnesses matters in respect of which it proposes to call evidence later. If it does not do so, the court can give leave for the witness to be recalled. It does not follow that the party who failed to put the matters in cross-examination cannot have the evidence admitted. That will be determined by the rules of admissibility.

110. Scope of chapter. In the remainder of this chapter the detailed proposals are considered. The first considered are those which apply generally to the questioning of witnesses, whether in examination-in-chief, cross-examination or reexamination. Proposals relating specifically to each of those phases of the questioning of witnesses will then be considered.

General proposals

111. Interim Report proposals. The following general proposals were suggested:

(a) Right to question. It should be made clear that a party may question a witness called by another party even when the witness has not given evidence that affects the case of that first party.

(b) Order of questioning. Unless the court orders otherwise, examination-inchief should be completed before cross-examination, and, once all parties have been given the opportunity to cross-examine, re-examination may occur.

(d) Interpreters. A witness should be entitled to an interpreter unless the court orders otherwise. Interpreters should be able to be used for part only of the evidence of a witness. The court should be able to stop the use of an interpreter at any time.

(e) Reviving memory in court. Leave of the court should continue to be necessary before the memory of a witness may be revived by referring to a document. The interim legislation set out matters for the court to consider in deciding whether to give leave. The witness should be allowed to read aloud a document so used, subject to the leave of the court. The court should have the power to give directions for the production of a document so used.

(f) Reviving memory out of court. The court should have a discretion to require production of any document or thing which was used out of court to revive a witness's memory, whether successfully so used or not, unless protected by client legal privilege. If, without reasonable excuse, the document or thing is not produced, the judge should be able to refuse to admit the evidence.

(g) Rule in Walker v Walker.[6] The rule that a party calling for and inspecting a document can be required to tender it should be abolished.

112. Responses to general proposals and recommendations. Commentators focussed particularly on issues relating to two of the above topics, interpreters and reviving memory.

(a) Interpreters. There was widespread support for the need for the proposal which changed the law so that a witness would be entitled to use an interpreter unless the court directed otherwise. The subjects that produced a conflict of opinion were the training of interpreters and the question whether, or to what extent, only formally accredited interpreters should be used. There is a need to have interpreters of the highest quality. One way to seek to achieve this is through training schemes and accreditation systems. These should be encouraged. To limit witnesses, however, to the use of accredited professional interpeters has problems. It is often not enough to interpret what is regarded as a national language; the interpreter will often need to speak a dialect to be able to interpret. In areas like the Northern Territory it would be enormously difficult to provide interpreters for Aborigines if formal requirements bad to be satisfied. Many litigants and witnesses simply cannot afford a professional interpreter. [7] These matters are outside the terms of reference and are concerned primarily with the allocation of resources. In the Commission's view, flexibility in the choice of interpreter is desirable and so far as rules of evidence are concerned, formal qualifications of interpreters should not be required. At the same time every effort should be made to increase the number and quality of interpreters.

(b) Reviving memory.[8] It is necessary to make more flexible the provision empowering the trial judge to direct that documents and things used out of court to try to revive memory be produced. The interim draft could be construed as requiring a judge, where he or she decided to give a direction, to direct that all documents and other things used to try to revive a witness' memory be produced. This interpretation is too limiting. The draft has been amended to enable the judge to direct that some only be produced.

Otherwise, the interim proposals were supported and subject to the above, it is recommended that they be implemented.

Examination in chief and re-examination

113. Interim Report proposals. It was proposed in the Interim Report that the following should apply for examination-in-chief and re-examination - that is, the questioning of a witness by the party that called the witness:

(a) Leading questions.[9] Parties should be able to put leading questions to witnesses they have called in relation to introductory matters and matters not in dispute. Otherwise, leave of the judge should be required.

(b) Unfavourable witnesses. At present, in most jurisdictions a party calling a witness who gives unfavourable evidence cannot cross-examine that witness on that evidence, or attack the witness' credibility, unless the witness is declared 'hostile' by the court. To achieve this the party who calls the witness must persuade the trial judge that the witness is not 'desirous of telling the truth at the instance of the party calling him'. [10] It was proposed that the law relating to 'hostile' witnesses should be abolished. Instead, a party should be able to question the witness on prior inconsistent statements and fully question such a witness as if in cross-examination, both on the prior statement and as to credibility. The leave of the court should be required. The same regime should apply to witnesses who happen to 'forget' some evidence in examination-in-chief or re-examination. The party wishing to challenge the witness should have to seek leave at the earliest opportunity. It was proposed, however, that the questioning of the witness should not take place until after the other parties had had an opportunity to cross-examine.

114. Responses and recommendations. The interim proposal on leading questions was generally accepted. It reflects existing practices. While there was general acceptance that the hostile witness rule is unsatisfactory there were some concerns about the reforms proposed. [11]

(a) Cross-examination of the unfavourable witness. It was proposed that the party who called the witness could, with leave of the court, question the witness about the unfavourable evidence as though the party were crossexamining the witness. This imported the rules proposed for the manner of cross-examination and was intended to enable the rules on the admissibility of evidence relevant to the credibility of the witness to be applied. [12] The intention was that these rules, together with the leave requirement, [13] would provide the machinery needed. As pointed out in the Interim Report, [14] circumstances will vary - on the one hand a witness may fail to swear up to a proof of evidence because of bias and a full attack on credibility would be warranted; on the other hand the unfavourable evidence may not be of major importance and the proposed attack on credibility may be insignificant. Commentators, however, pointed out that the draft could be construed as not allowing cross-examination going solely to credibility. [15] It should be made clear that cross-examination on matters relevant to the credibility of the witness is also permissible but only with leave of the court. An alternative would be to remove the reference to the evidence given by the witness so that cross-examination cannot be said to be limited to it. This, however, would remove all limits other than the leave requirement. [16]

(b) Time for questioning the unfavourable witness and subsequent questioning. The draft Bill provided that the party who called the unfavourable witness should not cross-examine the witness until the other parties had had the opportunity to question the witness. It was considered that this approach would minimise the total time spent questioning the witness other parties might well test the unfavourable evidence. The Commission now considers, however, that this should not be an inflexible requirement. For example, where the whole of the witness' evidence is to the contrary of a proof of evidence, the best course would be for the party who called the witness to immediately cross-examine the witness. It is proposed that the questioning by the party who called the witness should take place before cross-examination by other parties unless the trial judge otherwise directs.

(c) Right to further questioning. In the view of some commentators, it was not readily apparent that parties other than the party who called the unfavourable witness may further question the witness after the crossquestioning by the party that called the witness. This must be made clearer by a clause stating that other parties may question the witness in such order as the court directs.

Subject to the above changes, implementation of the interim proposals is recommended. Consideration was given to changing the definition of unfavourable witness. The phrase 'evidence that is unfavourable to the party who called the witness' is not entirely suitable for the situation where the witness is called by the Crown. [17] The Crown's function is not simply to act as an adversary party. It is obliged to present a case to the court but is obliged to act fairly and in doing so present all relevant testimony. [18] But it is, nevertheless, a party in the criminal trial, albeit a party in a special position and with additional duties to the court. Rules that apply to parties apply to it too. Several redrafts were attempted, but they complicated the clauses to the point that the clauses were unsatisfactory. It is recommended that the original definition be retained.

Cross-examination

115. Interim Report proposals. The following proposals were put forward to apply to the cross-examination of witnesses by parties other than those that called them:

(a) Witness called by mistake. A party should be free to withdraw a witness called by mistake, provided that no evidence in chief has been given.

(b) Improper questions. The judge should be able to disallow misleading, oppressive, repetitive, hectoring or abusive questions, or to tell the witness that the question need not be answered.

(c) Leading questions. The Judge should also be expressly empowered to disallow leading questions in cross-examination and direct the witness concerned not to answer the question.

(d) Cross-examination of witness on prior statements. Cross-examination on a prior inconsistent statement of a witness should be allowed. Before doing so, it should not be necessary to give complete details of the statement to the witness. Details should, however, be given before evidence of the statement is given by other witnesses. For the purpose of adducing evidence of the statement a party should be able to re-open its case.

(f) Production of documents. The judge should be able to require production of any document used in cross-examination, make such use of it as he or she thinks fit and, subject to the rules of admissibility, admit it in evidence.

(g) Cross-examination on documents. It should be specifically provided that a cross-examiner is not obliged to tender a document used in crossexamination.

(h) Rule in Browne v Dunn.[19] A cross-examiner should be required to put to each of the opponent's witnesses so much of the substance of the crossexaminer's own case as concerns that witness or on which that witness could give evidence. Noncompliance should not result in the exclusion of evidence but the judge should have a discretion to permit recall of the witness.

116. Responses and recommendations. The following issues and proposals aroused concern in the discussion of the interim proposals:

(a) Improper questions. The Standing Committee of Attorneys-General raised the issue of the controlling of cross-examination of handicapped people. The specific issue raised was whether the proposed clause controlling improper questions permitted the court to have regard to the personality and intellectual handicaps of a particular witness. The Committee referred to the commentary to the interim proposal which assumed a 'normal' witness. The clause allowed the personal characteristics to be considered but did not expressly address the point. It should be put beyond argument by a sub-clause stating that in determining whether or not to disallow a question or to inform the witness that the question need not be answered, the court shall have regard to all relevant matters including the personal characteristics of the witness.

(b) Leading questions in cross-examination.[20] The interim proposals permitted the trial judge to disallow leading questions in cross-examination or direct that they not be answered. [21] Although the proposals affirmed the common law, they surprised a number of commentators; the law as understood in practice differing from the law as it is written. There are situations [22] where leading questions should not be permitted in crossexamination. It is not necessary, however, to go as far as the interim proposals. [23] The legislation has been revised to provide, in substance, that a party may put leading questions to a witness in cross-examination unless the court otherwise directs. [24]

(c) Cross-examination on prior inconsistent statements. The proposal [25] was criticised [26] as giving an unfettered right to question about prior statements of other persons that have been or will be admitted in evidence. Such a right is not new. In any event, while the interim proposal did not, in terms, impose limits, another clause [27] did - the interim proposal to control improper questioning. In addition, the statement would normally be one that is relevant to the issues in the rase and otherwise admissible. This is an important limitation. The interim proposal should be adopted. [28]

(d) Power to order production of documents used in cross-examination. The interim proposal empowered the judge to require production of documents used in cross-examination and to make such use of them as the judge thinks fit. Such a provision is found in most jurisdictions. It is thought desirable, however, to be more specific. It is proposed that the judge be empowered to examine any document produced by direction and to give directions as to its use. As provided in the interim proposals, the judge may admit the document in evidence, subject to the rules of admissibility, notwithstanding that it is not tendered in evidence by any party.

The proposals were otherwise supported and, subject to the above changes, should be implemented.

Re-examination

117. Interim Report proposal. It was proposed that re-examination of a witness by the party that called the witness should be limited to matters arising in crossexamination unless leave is given. [29]

118. Responses and recommendations. The interim proposal received general support. It should be implemented with one change. The legislation should be altered by removing the detailed sub-clause which described some categories of questions that could be put to a witness in re-examination. [30] The interim proposal sought to address the heresy sometimes asserted that re-examination is limited to clearing up ambiguities in a witness' evidence. Having considered the issue further, the Commission now considers that the proposed sub-clause may be counter-productive and that the primary clause in its own terms addresses the 'heresy'. It has, therefore, deleted the sub-clause from the draft legislation.

Footnotes

[1] ALRC 26 vol I, para 599ff.

[2] For the discussion of the problem of defining 'the laws of evidence', see id, para 40ff.

[3] eg Hon Justice CW Pincus, Federal Court of Australia, Submission 1 (November 1985) 2.

[4] See ALRC 26, vol II, App C, para 25ff eg, hostile witnesses, unfair cross-examination, cross-examination on prior statements.

[5] Pt IV and V; para 119-225.

[6] [1937] HCA 44; (1937) 57 CLR 630.

[7] It was also suggested to the Commission that migrants to Australia have tended to come in waves of different nationalities with different languages. With each wave there has been a need for interpreters in new languages. Formally trained interpreters may help to fill the need but it was argued that as the migrants learn English the number of interpreters needed decreases. It was suggested that the pressure from each wave will last for approximately 10 years.

[8] The heading to the provisions dealing with the use of documents to try to revive memory was 'Reviving memory in court'. This has been changed to 'Attempt to revive memory in court'. This is a more accurate reflection of the content of the provisions.

[9] A leading question was defined as one that directly or indirectly suggested a particular answer to a question, or which assumed the existence of a fact the existence of which was in dispute and about which the witness had not yet given evidence.

[10] For differences in the law and other criticisms see ALRC 26, vol I, para 294ff; vol II, App C, para 34ff.

[11] For criticisms of the law see ibid.

[12] The rules of admissibility for credibility evidence were set out in Pt III Div 7 of the interim Bill, and were tied initially to cross-examination of a witness.

[13] Relevant matters were listed in interim cl 34(4) and 142.

[14] ALRC 26, vol I, para 625.

[15] The difficulty lay in the expressions 'a party. . .. may question the witness about that evidence as through . ...cross-examining the witness' and 'a party ... may question the witness about that matter as though ... cross-examing the witness.' They could be construed as limiting the crossexamination to the 'evidence' and the 'matter': P Waight, Submission32 (3 December 1985) 2, Submission 62 (1986) 1; I Phillips, Public Hearings, Melbourne, 427-8.

[16] Consideration was given to distinguishing between two situations: on the one hand, the witness who gives some favourable evidence and, on the other hand, the witness who gives totally unfavourable evidence or suffers a total loss of memory. in the former, consideration could be given to not allowing any cross-examination as to credibility. in the latter, however, it could be allowed. The above distinctions can be described and are cases that will arise. But they are not the only cases and there can be considerable variation. Any proposal advanced should be available to control all situations. Hence this alternative has not been adopted.

[17] DPP (Cth) Submission 65 (12 March 1986) 2.

[18] See eg R v Apostilides [1984] HCA 38; (1984) 58 ALJR 371, 376.

[19] (1894) 6 R 67.

[20] For definition, see above fn 9.

[21] The wording of interim cl 38(1) differs from interim cl 37(l) dealing with improper questions. Cl 37 is intended to protect the witness. Cl 38 was intended, in part, to protect the fact finding process.

[22] For example, where three or more parties are involved and a witness is favourable to two of them - ALRC 26, vol I, para632.

[23] Interim cl 38(1).

[24] The court's power could be limited to exceptional circumstances but, in the Commission's view, this would be too limiting.

[25] Interim cl 40(2).

[26] Hon Justice CW Pincus, Federal Court of Australia, Submission 1 (November 1985) 8.

[27] Interim cl 37.

[28] For consistency, however, 'prior statement' has been changed to 'prior representation' (interim cl 40). Some drafting changes were made and to aid in practice it is provided that the document used can be marked for identification.

[29] ALRC 26, vol I, para 628-9; interim cl 35.

[30] Interim cl 35(2).

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8. Commentary - rules of admissibility: structure

Structure of rules of admissibility

Footnotes

Structure of rules of admissibility

119. Interim Report. The interim proposals controlling the admissibility of evidence were structured around a primary rule of relevance - if evidence is not relevant, it is inadmissible; if evidence is relevant, it is admissible unless a specific rule of exclusion operates to exclude it. The rules of exclusion were framed, essentially, as exceptions to the primary relevance rule. The rules of exclusion themselves were subject to exceptions which lifted the exclusion. This structure is the structure of the existing rules of admissibility.

120. Responses. From the comments received, it became clear that insufficient emphasis was given in the Interim Report to the structure of the rules of admissibility and the part played in that structure by the relevance provisions. In particular, some commentators in looking at particular exclusionary rules, such as the hearsay or opinion proposals, expressed concern that there was no provision expressly saying that evidence that satisfied the exceptions to those exclusionary rules was admissible. In expressing this concern, they overlooked or forgot the relevance provisions which, if satisfied, render evidence admissible subject to the exclusionary rules. For example:

X is charged with murdering Y. It is alleged that he shot Y. Y before dying, said to his doctor that the shooting was his fault, that he had been cleaning a pistol and pulled the trigger thinking that there were no bullets in it. X seeks to call the doctor as a witness to give evidence of the conversation. Ruling: the doctor's evidence of what Y said is relevant and therefore admissible unless a rule of exclusion operates. The proposed hearsay rule applies: the doctor's evidence comes within it. One of the exceptions to that rule applies, however, [1] so that the proposed hearsay exclusionary rule is lifted and the evidence remains admissible.

121. Recommendations. This structure is not new. It is the approach taken by the existing law. Many people, however, do not analyse the existing law in this way. Instead they see the rules of admissibility as a mass of detailed rules and they search for a particular rule (usually an exception to an exclusionary rule) which they read as saying that certain evidence will be admissible. This approach prevents people understanding the rules of admissibility. [2] It can only confuse the mind; for even though a piece of evidence may come within an exception to, say, the hearsay rule and to that extent be 'admissible', it may be caught by another exclusionary rule - for example, the opinion or admission rules. Thus, it will not be correct to speak of a piece of evidence being 'admissible' simply because it comes within an exception to one of the exclusionary rules. The better view of the existing law is that the threshold test of admissibility is relevance. That approach, adopted in the Interim Report, should be retained. The structure of admissibility proposals in the Bill can be seen as a series of grids through which evidence must pass to be admissible. The first is the relevance grid. It will exclude irrelevant evidence and allow relevant evidence to pass. That evidence will be admitted unless it has to pass through other grids and fails to satisfy the exceptions built into those grids. To aid in understanding this structure the relevance provisions have been placed in a separate part of the Bill. In addition, new headings have been introduced, cross-referencing has been changed and footnotes inserted.

Footnotes

[1] Y having died is 'unavailable' and interim cl 59(5) applies provided the accused has given notice.

[2] For example, there is a tendency, when faced with computer produced evidence, to try to bring it within statutory hearsay exceptions even when there is no hearsay element.

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9. Commentary - relevance

Interim Report proposal

Responses and recommendation

Footnotes

Interim Report proposal

122. The primary rule: relevance.[1] The primary rule proposed was that relevant evidence should be admissible unless specifically excluded by an exclusionary rule, and that irrelevant evidence should not be admissible.

(a) Definition. 'Relevant evidence' was defined as evidence which, if accepted, could rationally affect, whether directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.

(b) Relevance discretion. In addition, policy considerations, concealed [2] in existing formulations, which lie behind any decision on the relevance of evidence, were made explicit by conferring on the judge an express discretion to exclude evidence if the advantages of admitting the evidence are substantially outweighed by the risk of unfair prejudice, the risk of the court being misled (for example, by incorrectly assessing the weight of the evidence) or by the risk of confusion or of undue waste of time.

123. Provisional relevance. The relevance of evidence often depends on making some other finding, for example, about the authorship of a document, or the accuracy of machine produced evidence. It was proposed that the court should, as at present, be able to admit such evidence provisionally on making such a finding or subject to additional evidence being admitted to enable that other finding to be made. In determining the relevance of documents or things, the court was expressly authorised to examine them and to draw any reasonable inference from them, including inferences as to their authenticity or identity. It was proposed that the standard of proof, for the purpose of determining provisional relevance, should in general be that it be reasonably open to make the other finding. [3]

124. Inferences as to relevance. It was proposed that the court be permitted to examine a document or thing, the relevance of which was in issue, and draw any reasonable inference from it that would go towards establishing its relevance. [4]

Responses and recommendation

125. Retention of proposals. The proposals received general support. One change was made. To remove any possibility of argument, the relevance provision has been amended to state that relevant evidence is, subject to the Act, admissible and 'shall be admitted'. Commentators [5] made the point that without the additional words, it could be argued that the court had a discretion to admit evidence that was relevant and was not rendered inadmissible by any of the exlusionary rules or discretions. While the Commission takes the view that such an argument, if mounted in practice, would be rejected, it recommends that the legislation address the point in the manner described above. Subject to this amendment, it is recommended that the interim proposals be implemented. [6]

Footnotes

[1] ALRC 26 vol 1, para 640ff.

[2] eg 'sufficient relevance' - R v Stephenson [1976] VicRp 34; [1976] VR 376; ALRC 26, vol II, App C, para 57.

[3] Specific provision was made to ensure that evidence of statements made by an alleged conspirator and tendered as evidence of acts done pursuant to the alleged conspiracy continue to be admissible as at present against all the alleged conspirators. The clause does not go beyond trials for conspiracy. As at present, where pre-concert is alleged in respect of substantive offences, there must be evidence sufficient to enable the inference of pre-concert to be drawn before the evidence of the acts of others is admissible against each accused: see R v Corack (1982) 30 ASR 404, 405; Tripodi v R (1961) 104 CCR 1, 7. See also ALRC 26, vol I, para 646. As to hearsay questions see id, para 755 and interim cl 74(2).

[4] eg the authenticity of the document - it is what the party tendering it claims it to be.

[5] O Jones & N Gregory, Attorney-General's Dept (Cth) Submission 110 (9 October 1986) 1.

[6] One commentator (DPP (Cth) Submission 59 (12 March 1986) 2) suggested using the term 'reasonably' instead of 'rationally' in the definition of relevant evidence. This option had been considered when formulating the original proposal. It was rejected then in part because it would leave open the argument that a piece of evidence might 'reasonably affect' a tribunal's view of the probabilities and therefore be relevant even though there was no rational link, only an irrational one.

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10. Commentary - hearsay evidence

Interim Report proposal

General responses to interim proposals

Major issue - firsthand hearsay exceptions

Policy framework

Final proposals

Dissent - firsthand hearsay

Footnotes

Interim Report proposal[1]

126. Exclusionary rule. The Interim Report proposed a general rule of exclusion for hearsay evidence. Hearsay evidence was defined as evidence of a representation made out of court to prove the existence of facts intended to be asserted in it. The continuation of an exclusionary rule was justified in the Interim Report by the following grounds:

out of court statements are usually not on oath;

there is usually an absence of testing by cross-examination;

the evidence may 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;

to admit hearsay evidence can unfairly catch the opposing party by surprise.

The definition of hearsay evidence covered representations in the form of oral or written statements or conduct. Where evidence of a representation was admitted for non-hearsay purposes (for example, to prove that a representation was made, not the truth of what it asserted) it could, under the proposal, be used to prove the facts asserted in the representation. Several exceptions were provided for first hand hearsay and more remote hearsay.

127. Exception - firsthand hearsay in civil proceedings. In civil proceedings, where firsthand hearsay evidence [2] was the best evidence that a party had available to it or the cost of calling direct evidence was not warranted, it was proposed that the exclusionary rule should not apply.

(a) Maker unavailable.[3] It was proposed that where the person who made the out of court representation was not available to give evidence, the hearsay rule should not exclude evidence of that representation if notice had been given to the other party.

(b) Maker available. It was proposed that where the maker of the representation was available, hearsay evidence could be admitted without calling the maker if notice was given and no objection was taken, or if the court granted leave. Where the maker was called as a witness, the hearsay evidence should be limited to evidence of representations made at or about the time of the event to which they related. [4] Where notice was required, it was proposed that it should include notice of all other relevant representations. The court should be able to relieve the parties of the consequences of non-compliance with the notice requirements.

128. Exception - firsthand hearsay in criminal proceedings. A similar structure was proposed for criminal proceedings.

(a) Maker unavailable. In general, the accused should be able to have firsthand hearsay evidence admitted when it was the best evidence he or she bad available. Thus, where the maker of the representation was not available, [5] the hearsay rule should not exclude the evidence provided notice was given. [6] The hearsay rule should not be relaxed in favour of the prosecution, however, unless specified guarantees of reliability were met: the person who made it was under a duty to make it; it was made at or about the time of the event to which it relates; it was made in the course of giving sworn evidence that was open to cross-examination by the accused; or it was against the interests of the person who made it.

(b) Maker available. Where the maker was available, he or she should be called and only statements made at or about the time of the events concerned could be admitted. Proofs of evidence, however, were not rendered admissible under the exception, although evidence relevant to identification was. [7]

129. Exception - more remote hearsay. The rule against hearsay was not relaxed for secondhand or more remote hearsay unless it came within a limited number of categories chosen on the basis of reliability and necessity.

Business and government records containing representations made or recorded in the course of or for the purposes of a business. These proposals were based on existing Commonwealth legislation. [8] Representations made in connection with legal proceedings, or in the course of the investigation of a criminal offence, were not to be admissible under this proposal.

Trade labels, tags, inscriptions on goods as evidence of the facts stated in them - for example, place of origin and identity of manufacturer.

Telecommunications, to prove the identity of the sender and recipient and the date, time and place of their sending.

Evidence of reputation as to marriage, family history or relationships, and public or general rights, except where adduced by the prosecution.

130. Other admissibility controls. Two residual exclusionary discretions were available in the interim proposal and could be applied to all evidence, including hearsay evidence - the relevance discretion [9] and the probative value/prejudice discretion. [10] Reference should also be made to the additional controls on evidence of admissions. [11]

131. Safeguards. The interim proposal included the following safeguards for the protection of the party against whom the hearsay evidence might be led.

(a) Discovery. Rules of court relating to pre-trial discovery of documents were extended to modem information-storing media such as tapes, discs and microfilm.

(b) Production of witnesses and documents. A provision was included enabling the court to direct that witnesses be called and documents be produced where hearsay evidence is led. This would be of particular importance where hearsay evidence in business records is admitted.

(c) Credibility of maker of representation. The interim proposals permitted the admission of evidence relevant to the credibility of the maker of the representation who did not give evidence, being evidence about matters on which the maker could have been cross-examined if called as a witness. The conditions precedent required by these provisions could be proved by affidavit evidence or, in the case of government records, by a written statement, made by a responsible officer.

132. Ease of application. One of the objectives of the Commission has been to simplify the law. The interim proposal may not at first sight seem simple. Two points should be made, however. First, compared to existing law, the proposal represented a significant simplification. Second, in practice, the proposal should be reasonably simple to apply. The provisions to be applied would be found by first asking whether the hearsay is firsthand or more remote.

(a) Firsthand hearsay. The proposal for firsthand hearsay was drafted in such a way that it would be necessary to look at only one section of the legislation in deciding its admissibility. That section would be found by asking the following questions:

is the trial a civil trial or a criminal trial; and
is the maker of the statement available or not?

(b) More remote. If the hearsay is not firsthand, its admissibility would depend on whether it came within the categories of business records, reputation evidence or other categories of exceptions.

General responses to interim proposals

133. Varied response. The comments on the proposals have been many and varied. They have included rejection coupled with the recommendation that the existing law be simply codified [12] and rejection coupled with the recommendation that the existing law be abolished. The former submissions relied on occasions on the argument that the rules are working in practice. On examination of this argument it was invariably demonstrated that the rules 'work in practice' because the rules are waived or ignored. [13]

134. In between these extreme positions there has been a varied response support for the proposal, support for and opposition to the details of the proposals. There was however, widespread support for a rule under which hearsay evidence is excluded and widespread support for the proposals for exceptions to the hearsay rule for more remote hearsay. Most of the debate centred on the firsthand hearsay proposals.

Major issue - firsthand hearsay exceptions

135. Basis of interim proposal. The approach recommended for firsthand hearsay in criminal trials was developed from existing common law exceptions. That recommended for firsthand hearsay in civil trials was derived from the English reforms enacted in 1968. [14]

136. Recent reforms. The subject has recently been reviewed by the Scottish Law Commission. It commented that the procedural rules made under the English reform are 'undeniably complex'. It noted that suggestions have been made that, because they are complex, they have tended to be ignored and parties have tended to rely on the court's discretion to admit hearsay even where the procedures have not been observed. Thus 'the exception may therefore have become the rule'. It concluded on this aspect:

Nevertheless, the Act appears to be working in practice and such enquiries as we have been able to make suggest that it is thought to have much improved the civil litigation process. [15]

From the successful operation of the Act it drew certain conclusions.

These are first that, subject to adequate safeguards, the civil courts can operate satisfactorily within a framework of general admissibility of hearsay and second, that notice procedures if too elaborate are likely to be little used in practice and, in their place, parties and their advisers may rely on the exercise of judicial discretion. [16]

The Scottish Law Commission recommended a more relaxed form of the English reform for civil trials. Its proposal was, in essence, that hearsay will generally be admitted in civil trials where the person who made the statement is called to give evidence. Where the person is not called to give evidence then, unless the other side consents, the issue will be whether it is reasonably practicable to call that person. The proposal provides for notice and counter-notice.

137. The Scottish proposal leaves choices to be made case by case which could be made at least on a prima facie basis - for example, if the maker is unavailable, prima facie the rule should not exclude evidence of his or her statement; prima facie business records should not be excluded by the rule. In addition, it theoretically enables evidence of statements made long after the event to be admitted where the maker of the statement is called to give evidence. While this is also the case under the English reform it should be remembered that the latter also required leave of the judge to be obtained. These concerns about the Scottish proposal may prove to be unjustified. On the other hand, anyone concerned about the extent of the relaxation of the hearsay rule proposed by this Commission should reconsider those concerns in the light of the English experience and the Scottish proposals.

138. A range of options. There is more than one way to approach the task of framing exceptions to a hearsay rule. There is no perfect solution. Using a rule of exclusion, a broad discretion to admit could be conferred. Such an approach however, would provide too much uncertainty and scope for argument. On the other hand, detailed exceptions could be drafted along the lines of the existing law. This, however, would be likely to result in the exclusion of probative evidence and, to avoid that, a discretion to admit would have to be added. The tighter the exceptions to the rule are drawn, the greater the need for a residual discretion to admit hearsay evidence. A balance has to be struck and establishing a policy framework is crucial to this task.

Policy framework

139. Interim Report analysis. The Commission [17] rejected the proposition that the ideal toward which the laws of evidence should move is to 'admit such material as an intelligent layman carefully making important decisions in his own affairs would regard as worth taking into account'. [18] The trial process is very different, as is the knowledge possessed by the decision maker. It also rejected the approach, sometimes advocated, that the purpose of the rules of admissibility of evidence is 'to determine whether a given piece of evidence is worth considering, in view of the practical conditions of trials'. [19] While this provides a useful summation, it is not of great assistance because it merely re-states the issues - what evidence is worth considering?

(a) Best available evidence. The starting point used in framing the interim proposals was the proposition that the 'best evidence available' to a party should be received. [20] This will assist the parties to present all relevant evidence and give the court the competing versions of the facts. In so doing, the appearance and reality of the fact-finding exercise will, on balance, be enhanced and so will the fairness of the trial process. [21] The concept of 'best available evidence' involves two elements - the quality of the evidence and availability. The quality of hearsay evidence will vary considerably. Categories of hearsay evidence, however, were isolated for the purposes of the proposal.

Remote hearsay. The distinction was drawn between firsthand and more remote hearsay. The view taken was that secondhand hearsay is generally so unreliable that it should be inadmissible except where some guarantees of reliability can be shown together with a need for its admissibility. This view is supported by psychological research. [22] Another reason for the distinction is that secondhand and more remote hearsay is generally of no value to the party seeking to call it and would, if admitted, add to the cost and time of proceedings. It will be impossible to assess its weight in most cases.
'Contemporaneous' firsthand hearsay. A distinction was drawn between statements made during or shortly after the events to which they refer and later statements. Experience suggests that the account of an event given shortly after the event will be more accurate than one given months or years after the event. [23] Psychological research, however, suggests that loss of memory is more dramatic than we realise and that we under-estimate the extent to which the memory is affected by a variety of distorting factors over time. [24] Evidence of a statement made shortly after the event is likely to be the best available evidence and any exceptions drawn should recognise this.

The element of availability, however, raises at least two issues. First, where the eyewitness has died, become too ill to testify or cannot be found, his out of court statement will be the best evidence available of what he saw. Secondly, the availability of evidence in a practical sense depends upon the difficulty of producing it to the court. What is the best available evidence may depend upon a balancing of the importance and quality of evidence against the difficulty of producing it.

(b) Criminal trials - a qualification. A major qualification to the above approach was made for the criminal trial. The concern to minimise wrongful convictions requires a more cautious approach to the admission of hearsay evidence against an accused. Where the maker is unavailable, some guarantees of trustworthiness should be required (as at present in some common law and statutory exceptions) before hearsay evidence is admissible against an accused. That same concern, however, reinforces the desirability of an approach without such limitations for evidence led by the accused. In addition, the cost of producing available direct evidence for the prosecution should be regarded as an issue of minimal significance. The accused is entitled to confront those who accuse him and expect that he will not be convicted on hearsay evidence where the relevant witness is available.

140. The Interim Report drew attention to the fact that, where reform will lead to an increase in the hearsay evidence admissible in trials, it will carry with it the risk that parties may be caught by surprise and the risk of evidence being fabricated. In such situations consideration must be given to appropriate safeguards to minimise surprise and the probability of fabrication and enable the party against whom it is led to investigate the evidence, meet it and test it, whether by crossexamination or other means. In addition, any relaxation of the hearsay rule will have cost implications. While the relaxation of the rule can result in cost savings, it can result in more evidence being led and collateral issues being raised. A cautious approach to relaxation is warranted and the benefits of any proposal must be compared with the likely addition to the time and cost of litigation.

141. Response and recommendation. No direct criticism was made of the policy framework except as to the distinction drawn between the prosecution and defence in criminal trials in relation to firsthand hearsay. [25] The distinction reflects the policy concern of minimising the risk of convicting the innocent. The proposal for hearsay evidence would aggravate this risk if extra requirements of reliability were not imposed on the prosecution [26] and the accused could not adduce hearsay evidence free of those requirements. If the accused had to satisfy the requirements, the accused would be prevented from having admitted statements of the victim exonerating the accused and confessions of third persons who had the opportunity to commit the crime. [27] The Commission proposes that the policy framework surmmarised above should be adopted.

Final proposals

142. Recommendation - retention of proposal. The Commission [28] recommends that, subject to the modifications referred to below, the proposals advanced in the Interim Report be adopted. The proposal provides the most satisfactory package for dealing with hearsay evidence. It provides a balance in favour of rules as opposed to discretions. It makes the relevant policy distinctions so far as exceptions are concerned - the distinction between firsthand and more remote hearsay; the distinction in the case of firsthand hearsay between the situation where the maker is available and that where he or she is not available; the distinction between civil and criminal trials. It also addresses the problem of surprise and the problem of adequately meeting hearsay evidence. [29] There are also the residual discretions which operate in the case of any hearsay evidence that may satisfy the proposed exceptions but which is thought to carry disadvantages that outweigh the advantages of its admission. [30]

143. Modifications to interim proposals. Some changes should be made in particular areas.

(a) 'Prescribed fact'. To avoid frequent and lengthy repetition, the term 'prescribed fact' was used instead of 'fact intended by the person who made the representation to be asserted by the representation'. The word 'prescribed' did not help the reader of the interim proposals to understand what kind of fact was described. To do this, the word 'asserted' has been substituted.

(b) Definition of firsthand hearsay and personal knowledge. In the interim proposals, it was intended to limit firsthand hearsay evidence to evidence of representations by persons about events they observed. The words used were 'by a person whose knowledge of the prescribed fact was ... based on what the person saw, heard or otherwise perceived'. This expression left open the possibility of remote hearsay being included in the firsthand hearsay proposal. To avoid this, it has been expressly stated in the Bill that, for the purpose of defining firsthand hearsay, a person's knowledge about the relevant fact must not be based on another person's representations. The knowledge so defined is described for the purposes of the Bill as 'personal knowledge'.

(c) Firsthand hearsay, civil trials - maker unavailable. The interim proposal went further than was necessary in relation to representations in documents in that the whole of the document escaped the hearsay rule if it contained a representation of the prescribed kind. The Bill, as it applies to documentary hearsay, has been limited to the firsthand hearsay in question and representations contained in the document to which it is reasonably necessary to refer to understand the firsthand hearsay.

(d) Firsthand hearsay, criminal trials - maker unavailable. It was intended that, where the accused had evidence admitted of the representation of an unavailable person, the restrictions imposed on the prosecution should be lifted so far as necessary to enable it to meet the evidence admitted. The draft Bill [31] went much further than this. The relevant clause has been redrafted to meet the original intention.

(e) Notice. The form of notice required particulars of proposed evidence to be given. There is a risk that the reference to 'particulars' will enable inadequate disclosure to be given. [32] To reduce this risk, the term 'substance' has been used instead of 'particulars'. There was also some uncertainty about whether it would be possible to comply with the notice requirements by putting all the information in an affidavit to be used in the proceedings. To remove any uncertainty, the notice regulations expressly enable this to be done.

(f) Interlocutory proceedings. The rules of most federal and Territory courts include provisions abrogating the hearsay rule in interlocutory proceedings. [33] The typical provision requires that the source of the hearsay evidence be identified. These provisions are important and useful and should be of general application. A provision has been included in the Bill. Consequential amendments of the rules of the relevant courts would be required. [34]

144. Hearsay evidence admitted for non-hearsay purpose. The Interim Report [35] proposed that hearsay evidence be able to be used to prove the truth of the facts asserted in the representation where the evidence is admitted for other purposes. The Interim Report cited two areas in which the operation of this clause could arise.

(a) Prior consistent and inconsistent statements. In the course of cross-examining a witness, it is quite common to question the witness about prior statements inconsistent with the witness' evidence. Evidence of such statements is admissible in most jurisdictions as evidence of the inconsistency but not as evidence of the facts asserted in the statement. Evidence of a prior consistent statement of a witness is admissible to rebut an attack that the evidence of a witness is a recent invention. It is not admissible in most jurisdictions as evidence of the facts asserted in the statement. In some jurisdictions evidence of prior consistent and inconsistent statements is admissible to prove the facts asserted. [36] The proposal would enable such statements to be used as evidence of the facts asserted in them.

(b) Factual basis of expert's opinion. The expert's evidence of the basis of his or her opinion can include statements of fact made to the expert. At present the evidence is admissible to prove the basis of the opinion, but not the facts asserted. The expert's evidence can also include evidence presently received as exceptions to the hearsay rule:

statements of fact forming the basis of the expert's accumulated knowledge;
reported data of fellow experts; and
information commonly relied on in an industry trade or calling. [37]

Other examples include the expert's evidence of his or her qualifications and the experienced drug user, whose expertise is based on hearsay, identifying drugs. [38]

The proposal enables evidence in all the above categories to be used for a hearsay purpose, if admitted for other reasons. It enables simpler rules and simpler operation of the law. It removes areas of schizophrenia and 'gobbledegook'. The proposal avoids the need to create a multiplicity of complex exceptions dealing with, for example, the factual material normally relied on by experts. Controls remain, however, and in appropriate cases, the evidence can be excluded. [39]

145. Recommendation. The proposal has been accepted by many but aroused concern in others. As to the latter, the main concern has been the possibility of statements of, for example, the malingering plaintiff to the doctor being admitted through the doctor and used for a hearsay purpose. It is feared that the plaintiff need not, and on occasions may not, be called, especially if the claim is not made in good faith. Those who expressed concern have also acknowledged that, normally, counsel would call the plaintiff before calling the expert. This concern relates to a minority of cases. In those cases what prospect of success would the plaintiff have if the plaintiff is not called? To fail to call the plaintiff would prompt devastating adverse comment and adversely affect the weight to be attached to the evidence. The concern, however, was met by other proposals in the interim Bill

enabling the defendant to force the plaintiff to be called, [40] and

enabling all the expert's evidence to be excluded if the person who made the representation is not called. [41]

Under the present law, as favoured by the critics of the proposal, the evidence of the expert can remain before the tribunal as evidence of the facts forming the basis of his opinion even though it cannot properly be used as evidence of the truth of the facts asserted. [42] It is unrealistic to expect that it is ignored for the latter purpose. It is more realistic to focus on what weight, if any, should be given to it and whether the powers mentioned above [43] should be exercised. It is recommended that the proposal be retained.

146. Hearsay evidence and the exclusionary discretions. It was intended that the relevance discretion and, in criminal trials, the probative value/prejudice discretion, would apply to hearsay evidence which comes within the exceptions to the proposed hearsay rule. It was questioned [44] whether this was achieved on the ground that the unreliability of the evidence offered is not a ground for exclusion under those discretions. The Commission remains of the view that the court can and should consider the reliability of the evidence concerned in applying those discretions. The Bill does not refer to the 'unreliability of the evidence' but it refers to the probative value of the evidence. Thus, for example, assume that the plaintiff has given evidence that Y said to the plaintiff that slanderous statements were made to Y about the plaintiff by the defendant. Assume the evidence is relevant to prove that the defendant did in fact make the alleged slanderous statements to Y - a hearsay purpose. The defendant wishes to have the evidence excluded and relies on the exclusionary discretion. In exercising that discretion, the trial judge can proceed on the assumption that Y made the statements. Proceeding on that basis, the judge can take account of the fact that the plaintiff's evidence is hearsay as that will go to the probative value of the plaintiff's evidence. The judge can also look to the surrounding circumstances in which the statement was made to the plaintiff and other matters going to the reliability of the evidence, such as bow recently after the event the statement was made, whether the person who made the statement had an interest or not in the matters referred to and whether the circumstances placed some obligation on the person who made the statement to tell the truth. The reliability of the evidence is an important consideration in assessing its probative value. In addition, the reliability of the evidence, if accepted, is relevant to other matters raised by the discretion - the risk of misleading the court, confusion and undue consumption of time.

Dissent - firsthand hearsay

147. Codification of exceptions for firsthand hearsay. One member of the Commission, [45] while supporting the proposals relating to more remote hearsay, dissents from the firsthand hearsay proposal. Instead, he favours an attempt at codifying existing common law exceptions. His position is based principally on the view that the existing exceptions normally involve appropriate circumstantial guarantees of trustworthiness and that the majority proposal may, especially in complex cases, render admissible large volumes of evidence which the adversary party will ordinarily have no real basis for answering or challenging. Draft legislation giving effect to this approach is set out in Appendix A. The majority view is that such an approach is too complex and preserves to varying degrees rules criticised as inadequate, arbitrary or anomalous and is generally too restrictive. [46] The majority proposals include safeguards to minimise the dangers of excessive evidence and difficulty in answering or challenging the evidence. [47] The proposals differ in their underlying rationale.

Footnotes

[1] ALRC 26 vol I, para 661ff.

[2] Evidence given by a person who heard or saw the representation made by another person who witnessed the event in question.

[3] It was proposed that the maker should be regarded as being unavailable where he or she was legally incompetent or not permitted by law to give the evidence, was dead, could not be identified or found after reasonable efforts, or had resisted all reasonable steps to compel the giving of the evidence.

[4] It was proposed that where the representation was contained in a document, it should not be possible to tender the document until the conclusion of the evidence in chief of the witness giving evidence of it unless the court otherwise ordered.

[5] See definition above fn 3.

[6] Notice should include notice of all other relevant representations. The court should be able to relieve the parties of the consequences of non-compliance with the notice requirements.

[7] Where the representation was contained in a document, it would not be possible to tender the document until the conclusion of the evidence in chief of the witness giving evidence of it unless the court otherwise ordered.

[8] Evidence Act 1905 (Cth) Pt IIIA.

[9] See above para 122; cl 117.

[10] See cl 118.

[11] See below para 152ff.

[12] The latter is not possible in view of the differences and uncertainties in the law. Choices have to be made.

[13] See also above para 22 and ALRC 26, vol I, para 232ff.

[14] The interim proposals were significantly simpler than the English legislation and rules. The interim Report noted the results of inquiries made in England. For comparison see ALRC 26, vol I, para 686ff. The comments received about the operation of the English reforms were positive.

[15] Scot Law Comm 100 para 3.32.

[16] id, para 3.34.

[17] See ALRC 26, vol I, para 676ff.

[18] NSWLRC 29 para 1.1.2; American Law Institute 1942, 4.

[19] Wigmore 1974, cited in R v Van Beelen (1974) 9 SASR 163, 194-5.

[20] UKLRC 13 para 6; James 1960, 796; Harding 1971, 536, 559, 560.

[21] See above para 33ff.

[22] ALRC 26, vol I, para 664ff.

[23] See Constantinou v Frederick Hotels Ltd [1966] 1 WLR 75, 78 (Lord Denning).

[24] ALRC 26, vol I, para 665-6.

[25] eg DPP (Cth) Submission 36 (January l986) 7-8.

[26] While based on existing law, they relax that law in some respects.

[27] For examples of probative evidence excluded by the rule see ALRC 26, vol I, para 330 and App C to this Report, para 11ff.

[28] For the dissenting view see para 147.

[29] Through the notice provisions and the provisions enabling parties to request the production of witnesses and documents.

[30] Interim cl 114 and 115.

[31] Interim cl 59(6).

[32] eg JM Batt QC, Submission 83 (May 1986) 5.

[33] ie proceedings that are not final, usually dealing with procedural problems that arise in preparing a case for trial, but including proceedings for injunctions pending the trial of an action.

[34] Suggested amendments are set out in App A.

[35] Interim cl 55(3).

[36] See ALRC 26, vol I, para 334, 685; vol II, App C, para 87-8.

[37] See ALRC 26, vol I, para 334, 685; vol II, App C, para 89-91; R v Bathurst (1968) 2 QB 99.

[38]Price v R [1981] TASRp 23; [1981] Tas R 306.

[39] Interim cl 114, 115, 137.

[40] Interim cl 137.

[41] Interim cl 114 (and 11 5).

[42] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 and Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642.

[43] Under interim cl 114, 115 and 137.

[44] eg JM Batt QC Submission 83 (May 1986) 2-3.

[45] Mr T Simos QC.

[46] As to the criticisms made of the existing law, see ALRC 26, vol I, para 329-45; vol II, App C, para 77-94. See also App C, para 11ff to this Report.

[47] Notice where maker unavailable or (in civil trials) not to be called; limiting representations where the maker is called to give evidence to those made when the facts asserted were fresh in the memory; power to direct that documents and witnesses be produced; disclosure of related representations where maker unavailable or not to be called,

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11. Commentary - opinion evidence

Interim Report proposal

Interim Report - major response

The detail of the proposals

Footnotes

Interim Report proposal

148. Exclusionary rule and exception.[1] It was proposed in the Interim Report that, subject to specified exceptions, evidence of opinion should not be admissible to prove the existence of a fact as to the existence of which the opinion is expressed. If the evidence is otherwise relevant, however, it should be able to be used for that purpose. Exceptions were provided for:

lay opinion evidence, if based on the personal perception of the witness and necessary for an adequate account of his or her perceptions; and

expert opinion evidence, an expert being defined as a person who 'has special knowledge, skill, experience or training'.

It was proposed not to include the American 'Frye' Test. [2] This test requires that an expert's opinion be related to a recognised field of expertise or result from the application of theories or techniques accepted in that field. The common law rules excluding evidence of opinion about matters of common knowledge and about ultimate issues were to be abolished.

Interim Report - major response

149. Concern about expert testimony. A major response came from experts, a number of whom expressed concern about the inadequacies that exist in the present system. To some extent they confirmed the concerns expressed in the Interim Report. These included:

experts being or becoming biased;

problems for parties and the court resulting from the increasing complexity of forensic testing;

the lack of funds available to accused persons for conducting their own tests;

the poor quality, on occasions, of the testing that is donepoor selection of tests, leaving out important tests, failing to test hypotheses consistent with innocence; and

tests becoming- increasingly sensitive using smaller and smaller samples (for example, pieces of dried blood that the eye cannot see or small pieces of hair). As the sample gets smaller, the potential for distortion by extraneous matter increases.

Some submissions suggested that these matters warranted tighter control of expert opinion evidence. [3]

(a) Appropriate exclusionary rules. Suggestions included excluding expert testimony where the experts' evidence conflicts or applying a test similar to the 'Frye' Test [4] that has been used in the United States of America. The latter test requires that the expert's opinion relate to an accepted field of expertise and involve the application of accepted theories and techniques. This may enhance the quality of expert testimony. It can, however, involve a lengthy inquiry into the facts relevant to the test and it can exclude evidence of probative value, for example, the opinion may be soundly based but new.

(b) Strengthening the relevance discretion. The proposed relevance discretion [5] will enable evidence of conflicting opinions to be excluded but the disadvantages must substantially outweigh the advantages associated with admission of the evidence. A different balance could exclude more evidence of opinions that conflict.

(c) Exchange of reports. A popular suggestion has been that expert's reports be exchanged. This would certainly help parties to prepare to meet expert evidence.

The submissions also produced some lateral suggestions not connected with evidence law. These included improving professional standards (both amongst the experts and the legal profession), creating Australian standards for forensic testing and providing check-lists with which to check the steps taken in the relevant test. [6] The latter suggestions would serve the objectives of the 'Frye' Test without the problems associated with it.

150. Recommendations. Extreme situations can be controlled through the residual exclusionary discretions. Ultimately, however, expert testimony cannot be excluded simply because it relates to new areas, conflicts with other expert testimony or because it is difficult to comprehend. If it could be, the courts would lag behind community knowledge. It is becoming increasingly important, however, to ensure that parties to litigation are placed, so far as is possible, in a position to meet such evidence. To this end the above lateral suggestions deserve encouragement. As to the other suggestions, rules of court should be made providing for the exchange of reports of experts and for the giving of directions for such exchange. They could also provide for the evidence of an expert to be inadmissible where his report has not been exchanged prior to the relevant hearing and in accordance with such rules. [7] It is not proposed that such provisions should be included in the Bill. The needs and the procedures of the relevant courts vary. In particular, a major difference between the federal courts and the Territory courts is the extent to which the former rely on affidavit material. Where affidavits are relied upon, there will be pre-trial disclosure of any expert opinion expressed in them. It is best to simply empower the courts to deal with the matter.

The detail of the proposals

151. Responses and recommendations. The proposals on lay opinion and expert opinion were generally well received. Some points of detail, however, required reconsideration.

(a) Expert opinion. The Interim Bill [8] enabled an expert to give opinion evidence based 'wholly or partly' on the expert's knowledge, skill, experience or training. The point was raised that this could enable an expert to give non-expert opinion evidence. [9] It is recommended that the words 'wholly or partly' be replaced by 'wholly or substantially'. [10]

(b) Definition of 'expert'. An expert was defined in the interim proposals as a person who 'has special knowledge, skill, experience or training'. This is too broad. It is open, for example, to the interpretation that someone who knows a person well is able to give evidence of that person's character as an 'expert' because of the 'special knowledge' possessed. The problem is to find a formula that is more limiting but at the same time will not be used to re-introduce the common knowledge limitation. The balance can be struck by using the phrase 'has specialised knowledge based on the person's training, study or experience.'.

(c) Common knowledge. At common law, the courts have excluded expert evidence about matters of 'common knowledge'. This has proved to be unsatisfactory. [11] Strictly speaking, the Interim Bill had the effect of abolishing the rule. The evidence, if relevant, should be admissible. No rule of exclusion applied. To avoid argument, however, a provision should be included to the effect that evidence of an opinion is not inadmissible by reason only that it relates to a matter of common knowledge.

Subject to the above changes, the interim proposals should be implemented.

Footnotes

[1] ALRC 26 vol I, para 738ff.

[2]Frye v United States 293 F 1013 (1932); ALRC 26, vol I, para 355-8, 743-8; vol II, App C, para 103-4.

[3] eg Dr E Magnusson, Submission 31 (3 December 1985).

[4] Ibid.

[5] para 122(b).

[6] Dr B Selinger & Dr EA Magnusson, Submission 115 (1 April 1986).

[7] For discussion of State and Territory provisions see Freckelton 1983, para 206ff; Freckelton & Smith 1983, para 63ff.

[8] Interim cl 68

[9] eg Hon Justice CW Pincus, Federal Court of Australia, Submission 1 (November 1985) 11; Law Society of Western Australia, Submission 117 (25 August 1986) 10-1.

[10] An option suggested was to substitute 'to the extent that the opinion is based on that knowledge. . .' It was not used because it was thought that it would encourage argument. It requires a clear line to be drawn and no expert opinion is based solely on expert knowledge.

[11] ALRC 26, vol I, para 354, 743; vol II, App C para 102.

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12. Commentary - admissions and confessions

General

Exclusionary rules

Interim proposals - departures from existing law

Assessment of interim proposals and recommendations

Inferences from silence

Footnotes

General

152. Interim Report proposal.[1] An 'admission' was defined in the interim proposals as a representation made out of court by a party which is adverse to that party's interests in the outcome of the proceedings. Consistently with the policies behind the approach taken for hearsay and opinion evidence, it was proposed that the hearsay and opinion rules should not prevent the admission or use of evidence of an admission. General proposals were:

(a) Legal capacity changed. The fact that a person made an admission in one legal capacity (such as that of a trustee) and is sued in another legal capacity (for example, personally) in the proceedings in question should not affect the admissibility of evidence of the admission in those proceedings.

(b) Related statements. Representations connected with and made contemporaneously with, or shortly before or after, the admission should also be admissible as part of the admission.

there is authority from the party to speak on the matter;
the person who made the statement purported or appeared to be an agent or employee of the party and purported or appeared to have authority within the area to which the statement related; or
the representation was made to further a common purpose shared by the person and party. [2]

(d) Use against co-parties. An admission, and the statement of which it forms part, should not be admissible against a co-party. A co-party should, however, be able to use an admission that is already in evidence, provided that statements connected to the admissions should also be admissible in relation to the co-party's case, even though they may be unfavourable to the co-party.

As with other categories of evidence, the residuary discretions [3] applied.

153. Response to general proposals and recommendations. The above proposals received support, but queries of detail. The queries were not such as required changes to the proposals. It is recommended that the proposal be implemented.

Exclusionary rules

154. Interim Report proposals.[4] Some exclusionary rules were proposed. Two of these proposals were to apply in both civil and criminal proceedings.

(a) Violence and admissions. Evidence of an admission should be excluded unless the court is satisfied that the admission was not influenced by violent, aggressive, inhuman or degrading conduct to any person.

(b) Illegally or improperly obtained admissions. The proposed discretion under which illegally and improperly obtained evidence could be excluded should be applied to admissions. Under that discretion, evidence obtained illegally or improperly would be excluded unless the desirability of admitting the evidence substantially outweighed the undesirability of doing so. The proposals included a list of relevant matters.

In addition, the following special exclusionary rules were proposed for criminal trials.

(c) Reliability of evidence of making. To ensure that reliable evidence of the making of an admission is available, evidence of admissions made in the course of questioning by law enforcement agencies should be inadmissible unless a recording was made available to the court, an appropriate third person was present or it was not reasonably practicable to adopt either course. The exception introduced a discretionary element.

(d) Circumstances of making. Evidence of an admission should not be admissible unless the court is satisfied, on the balance of probabilities, that the admission was made 'in circumstances that were not likely to affect its truth adversely', taking into account all the circumstances, including the characteristics of the person making the admission. If the admission was made during police questioning, it should be presumed that this test was satisfied if the admission was made in the presence of the accused's lawyer and after the usual warning, or if it is accepted by the accused as true in the trial.

(e) Written record. The written record of an admission should only be admissible as evidence of the admission if it was adopted by the person concerned signing it or acknowledging it in writing.

155. Response - a varied assessment. The many criticisms made of the existing law in the Interim Report were not questioned. The proposals in their application in criminal trials attracted much comment. This is not surprising considering the importance of such evidence in criminal trials and the time and cost expended in determining its admissibility in such trials. Criticisms of detail were made but there was also a wide disparity in the assessment of the proposals. Those involved with the investigation of prosecution of criminal offences tended to criticise the proposals as placing unreasonable obstacles in their path. Those involved in assisting accused persons in defending criminal proceedings tended to criticise the proposals on the ground that they gave inadequate protection to suspects and would lead to unfair trials of accused persons. This difference of view resulted in part from the fact that the proposal departed from the existing law in several important respects.

Interim proposals - departures from existing law

156. Voluntariness test - deficiencies. The common law requirement that an admission must be 'voluntary' if it is to be admitted in evidence was not retained. The voluntariness rule suffers from many deficiencies. [5]

According to the authorities, voluntary does not mean 'volunteered' but means a free choice to speak or remain silent.

An examination of the authorities, however, demonstrates that it does not mean a free choice either. If it did:

- admissions made out of court when the law requires an answer would not be treated as voluntary,

- we would ask whether the accused was aware of the right to silence and the privilege against self-incrimination;

- admissions made by a witness compelled to answer questions would not be regarded as voluntary; [6] and

- no pressure would be permitted upon the person being interviewed. Instead, considerable psychological pressure is permitted. [7]

It is unclear what are the relevant considerations. In particular, it is unclear whether:

- the personal characteristics of the suspect are relevant where there is no external pressure;

- where external forces operate they must be improper; and

- an untrue representation can render a confession involuntary.

There is also a vast body of technical and unclear law dealing with the admissibility of a confession induced by threats or promises by a person in authority. Fine distinctions have been drawn. For example, 'Be sure to tell the truth', is not a threat or promise that should exclude a confession [8] but 'It would be better for you to tell the truth' is. [9] It is unclear whether the inducement must actually cause the confession or whether it is sufficient that the inducement preceded the confession and was not removed. It is unclear whether the 'inducement by a person in authority' category describes examples of conduct that can result in a finding of involuntariness or whether it exhaustively defines the circumstances in which such a finding can be made when what is involved is threats or promises. If it is the latter, it is unclear whether the threats or promises must come from a person in authority. It is also unclear who comes within that description. For example, is it law enforcement officers only or does it include anyone in a position of authority in relation to the suspect? [10]

The result in practice has been that attention tends to focus on whether the accused was overborne in some way or whether threats or promises were made. In practice, unless the accused can demonstrate that he or she was overborne, or that inducements were offered by a person in authority, the accused will fail to have a court rule a confession involuntary. Thus, while the onus of proving voluntariness is formally on the prosecution, in practice there is a subtle reversal of the onus - it is placed on the accused. This means that, in particular where psychological pressure is relied upon, it is extremely difficult for an attack on a confession on the grounds of involuntariness to be successful. The tendency is to admit rather than the exclude.

157. Reforming the voluntariness rule. It would be possible to address a number of these criticisms. The attempt was made but in the end found not to be possible. One suggestion made was that the phrase 'a free choice whether to speak or remain silent' be substituted for 'voluntariness'. [11] It would be necessary, however, to define the new expression in such a way that it did not have its natural meaning, especially if the view were taken that it was not relevant to inquire whether the accused was aware of the right to speak or remain silent. As at present, that matter would have to be ignored, otherwise a vast number of admissions would not satisfy the test. In the final analysis, however, the exercise involves an attempt to patch up a concept that does not and cannot work. It would be better to approach the problem in a more practical way, as was attempted in the Interim Report. [12]

158. Voluntariness test - replacement proposals. In place of the voluntariness test the Interim Report put the following proposals:

(a) Admissions obtained by violence etc. The proposal excluding evidence of admissions unless the court is satisfied that they were not influenced by violence, etc, to any person.

(b) Recording or third party present. The exclusionary rule requiring evidence in the form of a recording to be made available to the court, or an appropriate third person to be present at the making of an admission.

(c) Circumstances adversely affecting truth. The proposal that an admission should not be admissible unless the court is satisfied that it was made in circumstances that were not likely to affect its truth adversely, taking into account all the circumstances, including the characteristics of the person making the admissions. Such a requirement is not to be found in most jurisdictions although in the Australian Capital Territory something similar is found. [13] The proposal also included presumptions: that it should be assumed that the circumstances were not such as to adversely affect the truth if a lawyer was present and the usual warning was given or if, at the trial (on the voir dire), the accused accepted that the admissions were true. At present the accused cannot be asked whether the admission was true in voir dire proceedings to determine the voluntariness of an alleged admission.

(d) Illegally or improperly obtained evidence. The discretion, proposed in the Interim Report, to exclude illegally or improperly obtained evidence differs from the existing law in that it requires the prosecution to justify admissibility and to show substantial balance in favour of admission. Under the existing law, the accused must justify rejection of the evidence. [14]

159. Another departure from existing law - admissions obtained unfairly. Under existing law the courts have a discretion, known as the Lee discretion, [15] to exclude evidence of an admission where, having regard to the circumstances in which it was obtained, it would be unfair to admit the evidence against the accused. This discretion was not included. The Commission relied upon the above package of proposals in its place.

Assessment of interim proposals and recommendations

160. Failure to recognise and protect right to silence - recommendations. A critical question, and one on which the Commission was concerned to obtain a response, was the question how its Interim Report proposals would operate in practice. In particular, accepting the policy objectives stated in the Interim Report, [16] did the proposals adequately address these objectives? The Interim Report emphasised that any proposal must address the objectives of maximising the truth of admissions, deterring police impropriety and illegality and protecting the individual in relation to state interference. Reference was also made to the importance of both the voluntariness rule and the Lee unfairness discretion in recognising and protecting the right of silence. However imperfectly those rules may operate (and the fact that they are unsatisfactory was accepted by commentators), they are expressly directed to that objective. The proposal advanced in the Interim Report, however, did not specifically address that objective and relied instead upon the indirect effect of the above package of proposals to protect the individual suspect's right to silence. It emerged in discussions that the proposal suffered from two major disabilities.

(a) Allowing questions as to the truth of the confession. Under the current voluntariness rule, the truth of the confession is not an issue. A confession can be excluded though true. Questions of the accused on the voir dire as to the truth of the admissions are not allowed. Under the interim proposals such questions would be allowed where the accused sought to rely on the proposal excluding admissions unless they were obtained in circumstances unlikely to affect their truth adversely. Where the accused admitted the truth of the admission, from a practical point of view this would effectively prevent the 'circumstances test' [17] excluding the admission even though the voluntariness rule would do so. Accordingly, that aspect of the interim proposal which allowed the accused to be questioned as to the truth of the admissions has been deleted and in its place a provision inserted that questions as to the truth of the admission are not allowed. This should also ensure that the trial judge will not duplicate the jury's task of determining the truth of the admission.

(b) Absence of the Lee unfairness discretion. Several commentators made the point that the Lee discretion has been used to deal with the situation where the accused has chosen to speak to the police but on the basis of assumptions that were incorrect, whether because of untrue representations or for other reasons. The proposed 'circumstances test' mentioned above does not deal with that situation. It is concerned with circumstances affecting the truth of the admissions, not the choice whether or not to make the admission. The interim proposals included a discretion enabling the judge to exclude evidence obtained illegally or improperly. That discretion is capable of dealing with the matter but not in the way that the Lee discretion does. The Lee discretion focusses on the question whether it would be unfair to the accused to admit the evidence. The discretion to exclude illegally or improperly obtained evidence requires a balancing of public interests. It would, therefore, be less effective than the Lee discretion in the situation where the confession was obtained because the accused proceeded on a false assumption. [18] There is a need for a discretion to enable the trial judge to exclude evidence of admissions that were obtained in such a way that it would be unfair to admit the evidence against the accused who made them. Such a discretion should be added to the proposal.

161. Further recommendation - cautioning the suspect. Notwithstanding the above mentioned changes, the modified interim proposal may still be criticised on the ground that more is needed to protect the civil liberties of suspects. To this end, a provision should be included to the effect that an admission should not be admitted where obtained from a suspect who was in custody but who had not been cautioned. At present, the requirement of a caution is imposed by the 'Judges' Rules' and police regulations. Breach of them does not result in automatic exclusion of the evidence but raises the possibility of exclusion under the Lee discretion and the discretions enabling the exclusion of evidence obtained improperly or illegally - the Bunning v Cross discretion. [19] The Commission understands that in the ACT, the prosecution observes the practice of not offering evidence of admissions made in records of interviews unless evidence can be given that the caution was first administered. This should be encouraged, particularly in proposals that replace the voluntariness test. [20]

162. Special rule for threats and promises? Some commentators urged that the Commission adopt the New South Wales legislation which deals with threats, promises and other representations which induce or influence the making of admissions. It was said that the interim proposals gave less protection to suspects. The New South Wales provision [21]makes confessions which follow upon an untrue representation, a threat or a promise subject to a presumption that they were induced by that representation, threat or promise; and, if the court ultimately finds that they were, it will exclude the confession. [22] On the face of it, the interim proposals could disadvantage accused persons in New South Wales [23] tried in criminal proceedings in a federal court. However, there is no magic in the presumption (it merely reflects the onus) and the New South Wales provision has been held not to apply unless the representation was known to be untrue by the representor. [24] As to 'threats and promises', what is alleged to be a 'threat or promise' is to be examined less strictly than was once the case. [25] The interim proposal dealt with the issue of admissions induced by threats and promises but not necessarily admissions induced by untrue representions.

(a) Threats and promises. Under the interim proposals, if something was said which could have affected the decision making of the suspect, it would be necessary for the prosecution to demonstrate that it was not something likely to adversely affect the truthfulness of the admission. [26]

(b) Untrue representations. Under the interim proposal, if the untrue representation amounted to an illegality or impropriety or could have affected the truth of an admission, there was machinery under which the confession could be excluded. [27] The proposal did not deal with representations causing a suspect to make an admission. If the Lee discretion is added (as proposed above) however, the proposal provides appropriate machinery to deal with them. The Lee discretion is used in most jurisdictions for that purpose.

163. Recording of interviews - recommendations. As noted above, the Interim report proposed that an admission made in the course of official questioning should be inadmissible unless it was recorded or an independent person was present or neither of these was reasonably practicable. [28] Several matters of detail should be raised in relation to this proposal.

(a) Sound recording. Concern was expressed that this might be interpreted to exclude video taping. This should be avoided.

(b) Apply to suspects only. Several agencies involved in law enforcement were concerned about possible problems that this proposal could create for them. It could prevent admissions made during the course of investigations by persons who were in fact helping them with their inquiries - persons who were not suspects. [29] It should be noted that, in its Criminal Investigation Bill, [30] the Commission did not seek to go as far as the Interim Evidence Report Bill goes. The Criminal Investigation Bill provided [31] for tape recording of interviews of persons primarily where the person was suspected of an offence. On balance, the proposal should be limited to the situation where a suspect is being interviewed. While this might be thought to weaken the proposal, the fact that an admission was made during a preliminary inquiry or investigation would be a matter that would enable the prosecution to argue that it was not reasonably practicable, in the circumstances, to have recorded the admission.

(c) Read back .A number of commentators urged the Commission to include an alternative under which it would be sufficient to record a subsequent confirmation of an earlier admission - a 'read back' - where it had not been reasonably practicable to record it. Recording of the 'read back' is a suggestion that has been made by several State committees. [32] Each recommended that the statement should either be recorded when made or the substance of it later confirmed by the suspect, the confirmation recorded and the confirmation should be available for evidence. Each recommended that a failure to comply should render the evidence inadmissible. [33] At present it is understood that there is recording of 'read backs' in Victoria and the Northern Territory.

The 'read back' may be criticised on the grounds that the original interview ought to be recorded. However, a 'read back' is better than nothing and at least ensures that there will be some form of recording of something. It may be that it will not be difficult for the official questioner to say that it was not reasonably practicable to tape the original admission.

It becomes much more difficult, however, to argue that when, for example, the suspect was taken to the police station, it was not then practicable to tape record a confirmation of the admission. On balance, the Commission recommends acceptance of this alternative - that is, that evidence of the original admission will not be admissible unless a recording is available confirming the making of the admission at the original interview.

Consideration was given to allowing the evidence of the alleged original admission and the 'read back' to be received even though the suspect denied, during the 'read back', that he made the admission. Taping the 'read back', however, is not an ideal solution. It will record a negotiated summary of what was alleged to have been said and done in the original interview. It cannot convey the atmosphere in which the original interview was conducted. Partly for this reason, the Commission recommends that the evidence of the original admission should be admitted only where the suspect acknowledged making the admission in the recording of the 'read back'. In addition, the alternative of allowing evidence to be given where the accused denies the admission on the 'read back' would defeat one of the objectives of requiring the recording of interviews - to obtain reliable evidence of admissions. To admit evidence of an alleged admission, denied in a recording by the accused, will not obviate the lengthy and costly debate in trials about whether an admission was made or not. Moreover, a recording, in which it is alleged that an accused made an admission, could be used to confirm a false allegation that the accused had made that admission.

It should be noted that the Interim Report proposal and the proposal revised in the manner above differ from those of two of the abovementioned State committees. [34] Their proposals would require the prosecution to establish that there were exceptional circumstances which would justify admission of the evidence where a recording was not made. [35] The exception provided in the Commission's proposals is not 'exceptional circumstances' but reasonable practicability. The Commission considered adopting the 'exceptional circumstance' exception but considers it unsatisfactory. As to what could constitute 'exceptional circumstance', one State Committee [36] suggested matters such as the gravity of the alleged offence, the existence of a signed confession and the availability of an independent witness. It is difficult to see how these factors might be seen as exceptional. As to the first, it may also be argued that the graver the offence, the greater the need for compliance with the recording requirement.

(d) Independent person. The Interim Report included, as an alternative to recording admissions, the option of having an independent third person present. The list included magistrates, justices of the peace and 'prescribed persons'. Several submissions pointed to the impracticality of involving magistrates or justices of the peace in interviews as independent persons. There also seems to be little point in including prescribed persons. Their removal from the list is recommended. At the same time, the categories remaining would be too limited - a legal practitioner or friend or relative. There should be added 'a person nominated by the suspect not being an investigating official'.

164. Issues considered. Some other issues were raised and warrant mention.

(a) Illegally obtained evidence. As stated above, the Interim Report included a judicial discretion enabling evidence illegally or improperly obtained to be excluded. This discretion applied to evidence of admissions as well as other evidence. The proposed discretion placed the onus on the prosecution to justify admission of evidence so obtained and, in doing so, it required the prosecution to demonstrate that the desirability of admitting the evidence 'substantially' outweighed the undesirability of admitting evidence obtained in the manner in which the evidence had been obtained.

Several submissions strongly argued for automatic exclusion of evidence obtained illegally or improperly. Others strongly argued for retention of the existing discretion under which the onus is placed on the party seeking to exclude the evidence. In the Interim Report, the arguments for and against these positions and alternative proposals were considered. [37] In the Commission's view, the policy concerns [38] do not justify automatic exclusion. The policy concerns compete and operate with varying force depending upon the circumstances of a particular case. The situation is one where a discretionary approach is the most appropriate.

The opposition to the Interim Report proposal focussed initially on the placing of the onus on the prosecution and the requirement that the desirability of admitting the evidence 'substantially' outweigh the undesirability of admitting it. The proposal was framed in this way because, in the view of the Commission, once misconduct has been established, the burden should rest on the prosecution to persuade the court that the evidence should be admitted. After all, the evidence has been procured in breach of the law or some established standard of conduct. In the context of admissions in particular, the persons who have infringed the law will be identified with those seeking to rely upon the evidence - the prosecution. So it may be further argued that those who infringe the law should be required to justify their actions and the admission of the evidence and thus bear the onus of persuading the judge not to exclude the evidence so obtained. Practical considerations also support this approach. It is not often that evidence is excluded under the common law discretion that presently exists. Further, factors relevant to the exercise of the discretion include the mental state of the law enforcement officers involved and the urgency under which they acted. The prosecution will have access to the relevant information and witnesses. It would, therefore, seem more appropriate that the prosecution have the primary responsibility of showing that the officers acted in good faith, rather than the accused having to show the reverse. For similar reasons, the proposal required a substantial balance in favour of admission.

In the course of discussion with those opposed to the proposal, it emerged that the opposition centred on the substantial outweighing requirement and not the placing of the onus of proof proposal. If this were removed, then the proposal became acceptable. The Commission recommends that that requirement be deleted. It is probably inappropriate to have it. What is critical is that the prosecution has to justify admission. In considering the balance between the desirability and undesirability of admitting the evidence it is necessary to consider the force or weight of the competing considerations. Where the impropriety or illegality is a serious and deliberate one, the evidence would be excluded under the proposed discretion unless there were very strong competing considerations supporting its admissibility. If the impropriety or illegality was a minor one and unintentional, then the matters supporting admissibility would not have to be so weighty. This approach should strike the right balance and it is recommended by the Commission.

(b) Signed records of interview. The issue was raised whether the provisions should apply to exclude a signed record of interview the making of which has not been recorded. In the Commisson's view it should. The provision for tape recording or having an independent person present is one designed in part to protect the rights of the suspect. Just as oppressive conduct can cause a suspect to make false admissions, so it can cause a suspect to sign a document containing those admissions. An exception, for signed statements, should therefore not be made. It should be noted that, if a recording is subsequently made in which the suspect acknowledges making the signed confession, it will be admissible under the proposal.

(c) 'Reasonably practicable'. Concern was expressed by a number of people involved in the prosecution of offences as to the lack of definition of what is or would be 'reasonably practicable'. It may be said that this is very much in their hands - if there is an adequate supply of recording equipment and the practice is adopted of recording all interviews wherever possible, the number of cases in which the issue will arise will be very small indeed. Consideration, however, was given to including some cases in a list but it was found to be unsatisfactory. The circumstances will vary so much - whether recording equipment was available or not readily available, not working or no replacement available or not capable of being repaired or not capable of being repaired within a certain time. The test of 'reasonably practicable' is the most satisfactory test to use.

(d) Tie to discretion to exclude illegally obtained evidence. A suggestion made was that the requirement of recording admissions be tied to the discretion to exclude illegally obtained evidence. [39] The effect of this approach would be that, rather than a breach of the recording provision giving rise to exclusion unless the breach could not have reasonably been avoided, breach of the provision would raise the court's discretion to exclude illegally obtained evidence. The Commission is not in favour of this approach. It would involve the effective abandonment of major objectives of the provisions - obtaining reliable evidence of the admission and enhancing the prospects of truthful admissions.

(e) Circumstances of admission leading to exclusion. The interim proposal provided that an admission is not admissible in a criminal trial unless it was made in circumstances that were such as to make it unlikely that the truth of the admission was adversely affected. A statutory presumption was also created that if a lawyer were present when the questioning took place, it would be presumed that the rule was satisfied in the absence of evidence to the contrary. A reason for the provision was to encourage the practice of having a legal adviser present. It is debatable, however, whether it would have this effect. The legal adviser might well advise the suspect of his or her rights and then leave the official questioning to avoid the presumption arising. It is more appropriate to refer to the point in the provision which lists some of the matters that the court should consider in deciding whether the circumstances in which the admission was made should warrant exclusion.

Inferences from silence

165. Interim Report proposal. The Commission has supported the retention of the right of all suspects to remain silent when questioned out of court. [40] The issue for evidence law is what inferences, if any, should be allowed to be drawn from the silence of the suspect. If, for example, guilt can be inferred from silence the right to silence will be defeated. The law in the area is confused. [41] The Interim Report proposed that it should not be permissible to draw inferences from the silence of the accused in response to questioning by anyone whose duties include law enforcement, but the court should not be prevented from considering, for example, the failure of the accused to tell the police of an alibi or defence later advanced at the trial in determining what weight to attach to such alibi or defence. This departed from present law in that it would not permit an inference of a consciousness of guilt on the part of the accused to be drawn from selective answering of questions by the accused. It was thought that to permit such an inference can effectively defeat the right to remain silent and is fundamentally unfair in that it penalises the accused who is relying on his rights. The interim proposal also had the effect that evidence of the silence of the individual that may only be used to draw such an inference would not be admissible. If, however, it was an offence to refuse to answer, the proposal did not prevent evidence of the silence being admitted where relevant to that charge.

166. Responses. The proposals were either supported or attacked. The submissions, however, often misunderstood the proposal - in particular, the distinction between the ban on drawing inferences of guilt from the silence of the accused and the fact that, when an alibi or defence was raised, the failure to mention it, when interviewed, could be considered in assessing that alibi or defence. [42] A major criticism of the interim proposal was that it allowed the failure of an accused to mention an alibi or defence when questioned to be considered in assessing that alibi or defence. If, however, the failure to mention an alibi or defence when interviewed can be considered in deciding what weight to attach to them, the law is allowing inferences to be drawn from the exercise of the right to be silent when questioned out of court. This is inconsistent with the existence of such a right. In the words of the Director of Public Prosecutions for Victoria, Mr John Coldrey QC:

I do not agree with the proposal advanced by the ALRC ... that 'negative inferences' may be drawn from the failure of the accused to tell the police of an alibi or defence, later advanced at trial. If the right to silence is truly what it purports to be then it should not be eroded in this fashion. It becomes, in effect, a right to silence in certain specific situations. In the view of the Police Powers Committee the right to silence is a cornerstone of the Criminal Justice System and it should be preserved in its current state. [43]

167. In a recent report of the Victorian Consultative Committee on Police Powers of Investigation a powerful argument was put for the proposition that no inference of guilt should be drawn from the silence of a person when questioned.

If such an inference were to be drawn then in no real sense of the word 'right' would there be a 'right to silence'. All that would remain is a prohibition against the use of force and the absence of any legal compulsion to make a statement to police. This right can only exist if no adverse consequence arises from choosing a course consistent with its exercise. [44]

After referring to many possible reasons consistent with innocence for a person to remain silent, [45] the Committee concluded:

In short therefore it is simply not safe to draw the inference of guilt from the refusal to answer questions put by the police. Because there are many reasons for not answering such questions which are consistent with innocence the inference cannot be reliably drawn. [46]

168. The Committee referred to practical difficulties that could occur should an inference of guilt be allowed. [47] If an inference of guilt could be drawn from the accused's silence, the accused must be given the opportunity to rebut the inference. That could result in a host of witnesses being called to give evidence on the accused's general background and behaviour, including psychologists and psychiatrists to give expert evidence on the accused's psychological make-up and the relevance of that to interrogation by police. This would have at least three deleterious effects for the criminal justice system:

cases would become very complicated;

there would be a real risk that such background material would engender sympathy in juries and lead them to dismiss charges on irrelevant grounds; and

the length of time taken by the trial and possibly the pre-trial process would be significantly increased.

169. Recommendation. These practical considerations, as well as the above arguments of principle, strongly support the approach that no adverse inferences should be permitted to be drawn from the silence of the accused. The Commission recommends this approach. [48]

Footnotes

[1] ALRC 26 vol I, para 755ff.

[2] It was proposed that the hearsay rule be abrogated to the extent necessary to enable a representation of authority or common purpose to be used as evidence of that authority or common purpose.

[3] Interim cl 114, 115.

[4] ALRC 26, vol I, para 759ff.

[5] See ALRC 26, vol I, para 371ff; vol II, para 129ff.

[6]R v Zion [1986] VicRp 58; [1986] VR 609; R v Coote [1873] EngR 4; (1873) LR 4 PC 599.

[7] For recent examples: R v Kushkunian (1984) 16 A Crim R 416 (NSW C of CA): R v Kelcey [1985] VicRp 73; [1985] VR 765, 771.

[8] R Y Court [1837] EngR 230; (1876) 7 C & P 486.

[9]R v Beere [1965] Qd R 370, 373.

[10] See generally ALRC 26, vol II, App C, para 131.

[11] Suggested by Mr B Kayser, Criminal Bar Association of Victoria, Submission 72 (20 March 1986) 5 - the expression used in R v Lee [1950] HCA 25; (1950) 82 CLR 133, 149.

[12] Another reason for abandoning the voluntariness test is the dicta in Cleland [1982] HCA 67; (1982) 151 CLR 1, 9, 17, 35-6 that it will be rare to exclude a confession under the discretion to exclude illegally or improperly obtained evidence if it has been found that the confession was voluntary. The view was repeated in Williams v R, unreported, High Court, 26 August 1986, Gibbs CJ, Transcript of reasons for judgment, 7.

[13] Evidence Ordinance 1971 (ACT) s 68(2): 'A confession or admission tendered in evidence against the person charged in a criminal proceeding shall not be rejected only on the ground that a promise, threat or other inducement (not being the exercise of violence, force or other form of compulsion) has been held out to or exercised upon the person making the confession or admission, if the judge is satisfied that the means by which the confession or admission was obtained were not in fact likely to cause an untrue admission of guilt to be made.'

[14] This proposal formed part of the package replacing the voluntariness test but applies beyond the topic or admissions to all evidence obtained illegally or improperly.

[15]R v Lee [1950] HCA 25; (1950) 82 CLR 133.

[16] The policy issues involved were discussed in ALRC 26, vol I, para 759ff.

[17] Interim cl 72(4). It would be difficult to argue successfully that the circustances test should apply when the accused admitted that the admission made in the circumstances complained of was true.

[18] In discussion of the Interim Report several examples were given of cases which are best addressed by the Lee discretion.

� The accused was questioned, after proper caution, in relation to his alleged involvement in a cannabis plantation. He exercised his right to remain silent. Several weeks later, after it was discovered that a homicide had occured at the same plantation, the accused was again questioned, The questioning proceeded on the basis that it was alleged that the accused was involved in the homicide. After caution, he denied any such involvement. The questioner then switched to the topic of the plantation itself without administering another caution. it was held that the admissions had been unfairly obtained and should be excluded in the exercise of discretion because the accused answered the questions relating to his involvement in the plantation in the context of an interview about a homicide without it being brought to his attention that the questions regarding the plantation were distinct from the suggestion that he may have been involved in the homicide.

� The accused had given evidence at his previous trial. At that time the law was understood to be that, once the Crown established that he was in physical possession of prohibited imports (drugs), he had to prove that he had a good excuse. On appeal, the High Court held that the Crown carried the burden of proving the mental element of the offence and upheld his appeal. At his re-trial, the question arose whether the Crown could lead evidence of sworn evidence given at the first trial. It was held that, although his previous evidence was voluntary, it should be excluded under the Lee discretion. The evidence had been given when the accused was under a misapprehension as to the law.

� A woman was questioned, she thought, about an assault. She was subsequently charged with rape. On appeal it was held the confession should have been excluded in the exercise of the Lee discretion.

� The interviewers did not tell the suspect that the victim of the shooting in question had died. The suspect thought he was talking about a wounding. The admissions were excluded in the exercise of the Lee discretion.

� A person was interviewed for thirty minutes and repeatedly stated he did not want to answer questions. Later a further attempt was made to get answers but he still refused to answer. A third attempt was made and he finally gave answers and allegedly made admissions. They were excluded under the unfairness discretion.

[19]Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.

[20] The inclusion of this proposal renders it inappropriate to include a provision (interim cl 72(6)(a)(iii)) which raised a presumption that the circumstances test (interim cl 72(4)) was satisifed if a caution was given. The rule should not apply where the suspect is obliged by law to answer questions.

[21] Crimes Act 1900 (NSW) s 410.

[22] In Queensland (Criminal Law Amendment Act 1984 (Qld) s 10) a similar provision applies but only to threats and promises.

[23] And Queensland.

[24]R v Thompson [1962] SR (NSW) 135.

[25]R v Bodsworth [1968] 2 NSWR 132.

[26] Putting the onus in this way is essential. Consider the decision in R V Cornelius (1936) 55 CLR 235 where the Victorian provision, which places the onus on the accused, was considered. There the High Court assumed that the police had said to the accused that a woman with whom the accused was living would be charged with murder if he did not confess. It held that that would amount to a threat or promise but (the onus being on the accused) was not such as would be really calculated to cause an untrue admission of guilt to be given.

[27] The abovementioned 'circumstances' test and the discretion to exclude illegally obtained evidence.

[28] It has been submitted that a rule of admissibility should not be used leg DPP (Cth) Submission 12 (3 December 1985) 10-12). The approach taken is appropriate. The rules are concerned to maximise the reliability of evidence. This is a rationale supporting other rules of evidence such as the hearsay rule.

[29] eg Trade Practices Commission (Corporate Planning and Services) Submission 56 (19 February 1986) 10-11; Commissioner of Taxation (Cth) Submission 46 (January 1986) 3-4.

[30] ALRC 2 para 149.

[31] id, cl 35.

[32] Shorter Trials Committee Report para 2.124; NSW Criminal Law Review Division 1984, para 5.29, 6.10, 6.83; Victorian Consultative Committee Report 90.

[33] The Victorian committees, however, would permit the evidence to be admitted in exceptional circumstances - see text to n 35.

[34] Shorter Trials Committee Report; Victorian Consultative Committee Report: above n 32.

[35] NSW Criminal Law Review Division (above n 32) recommended no exceptions.

[36] Shorter Trials Committee Report para 2.

[37] ALRC 26, vol I, para 958ff.

[38] The need for all relevant evidence; disciplining police for illegality or impropriety; deterring future illegality; protection of individual rights; fairness of trial; executive and judicial legitimacy; encouraging other methods of investigation - see discussion in ALRC 26, vol I, para 959ff.

[39] See above para 154(b), 158(d), 163(e).

[40] ALRC 2, para 146; ALRC 26, vol I, para 756ff.

[41] ALRC 26, vol II, App C, para 118-20,

[42] ibid.

[43] J Coldrey QC, DPP (Vic) Submission 92 (1986) 5.

[44] id Victorian Consultative Committee Report, para 2.13. The police representative reserved his position.

[45] ibid, citing ALRC 2, para 150.

[46] id, para 2.13.

[47] ibid.

[48] The draft Bill, in terms, forbade adverse inferences from silence. It was assumed, incorrectly, that this did not prevent use of the failure to mention an alibi or defence in weighing up such alibi or defence when later raised. Clearly in doing so inferences are drawn from silence. The draft, however, on its proper construction will not allow this. The clause has, therefore, been retained (now Evidence Bill 1987 cl 78).

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13. Commentary - the rule in Hollington v Hewthorn

Exclusionary rule and exceptions

Footnotes

Exclusionary rule and exceptions

170. Interim Report proposal.[1] It was proposed in the Interim Report that, as at present, evidence of court decisions in previous civil and criminal cases, including acquittals, should not generally be admissible as evidence of the facts on which the decisions were based. If relevant for another reason, the primary rule was not to operate to prevent the use of the decision as evidence of the facts on which it was based. Several exceptions to the primary rule of exclusion were put forward. It was proposed that evidence of a conviction [2] should not be excluded by this rule if tendered against the person convicted or those claiming through that person in civil proceedings, provided the conviction is still operative. The law relating to the admissibility and effect of evidence of a conviction tendered in defamation proceedings and of judgments in rem (including divorce decrees) was to be specifically preserved. An exception provided for civil judgments was for grants of probate and letters of administration. Proposals to protect parties against whom the evidence is led were included - for example, procedures for obtaining orders for the production of documents and of witnesses.

171. Responses and recommendations. The interim proposals received general support. An issue raised by commentators [3] was whether it should be expressly stated that the doctrines of issue estoppel and res judicata are not affected by the proposal. On a proper construction of the legislation they are not affected, but to remove any argument it has been decided that the Bill should specifically exclude them. Another proposal queried was that allowing evidence of court decisions excluded by the primary exclusionary rule, but admissible under another rule, to be used as evidence of the facts on which the decision was based. [4] This clause raised some concern. It had the effect, for example, that, where evidence of a judgment in a civil negligence action is relevant simply to prove that judgment was obtained against a defendant, it could also be used as evidence of the negligence of the defendant. On balance, the interim proposal went further than was necessary. Accordingly, the draft has been amended and the Bill now prevents evidence of a judgment being used in a proceeding as evidence of the facts on which it was based where it is relevant in that proceeding for some other reason unless the evidence of the judgment comes within one of the exceptions provided in the Bill. Subject to the above changes, the interim proposals should be implemented.

Footnotes

[1] ALRC 26 vol I, para 771.

[2] Including by jury, before a magistrate and upon a guilty plea, and convictions by Courts Martial and Defence Force Magistrates under the Defence Force Discipline Act 1982 (Cth).

[3] eg Hon Justice CW Pincus, Federal Court of Australia, Submission 1 (November 1985) 13; Attorney-General's Dept (Cth) Courts & Administrative Law Branch, Submission 74 (4 April 1986) 3; TW Smith QC, Melbourne, Submission 100 (July 1986) 12.

[4] See interim cl 77.

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14. Commentary - character and conduct

Introduction

Character and conduct relevant to issues

Evidence relevant to the credibility of witnesses

Footnotes

Introduction

172. Scope and structure - Interim Report proposal.[1] The interim proposals dealt with evidence adduced to show a person's character traits or tendencies. Such evidence may take different forms - for example, evidence of conduct, evidence of opinion as to character - and it may relate to a person's credibility as a witness or to the issues in the case or to both. It was proposed that there should be rules regulating the admission of evidence of a person's character or past conduct where it is relevant because of the tendencies it shows. The proposals did not deal with the admission of such evidence where the character or past conduct was a fact directly in issue: clearly it is there not appropriate to exclude it. The interim proposals were divided into three parts:

rules to control the admission of evidence relevant because it relates to the credibility of witnesses;

rules to control admission of evidence of conduct relevant to the issues but not to the credibility of witnesses; and

rules excluding evidence of character except when adduced by an accused. Such evidence could, when admitted, be used for both the issue of the accused's credibility and guilt.

173. Response to scope and structure. A number of commentators had difficulty understanding the operation of the proposal. This apparently resulted from its organisation. It became clear that it was necessary to break it up into two distinct parts - one dealing with evidence of character and conduct relevant to the issues and the other dealing with such evidence relevant only because it relates to the credibility of a witness. This reflects what happens in practice. When questions of admissibility arise in a trial, the first issue usually raised is the relevance of the evidence in question and whether it is relevant to the issues or relevant only to credibility. This approach also enables a more satisfactory treatment of credibility evidence. Some evidence relevant to credibility cannot be called evidence of character or conduct - for example, evidence of bias, of motive to lie and evidence of a physical or mental condition that would prevent a witness being aware of that to which the witness deposes. It serves the interests of a systematic treatment of the laws of evidence to break the subject up in this way. [2]

174. Scope and structure - recommendation. Two Divisions have been created in the Bill to reflect this arrangement.

(a) Evidence of character and conduct relevant to issues.[3] The main proposal is a general rule excluding evidence, whether of character, reputation, conduct or tendencies, which is relevant to prove a person's tendencies. Exceptions are created for evidence of conduct and an accused's evidence of his own good character.

(b) Evidence relevant to credibility.[4] These proposals follow closely the Interim Report proposals for evidence relevant to the credibility of witnesses. There are repeated, however, the provisions in the other proposed Division for evidence of good character adduced by the accused.

The result is that it will be possible in practice to identify quickly and with confidence those provisions which apply when the evidence is said to be relevant to the issues or to credibility. The content of the Interim Report proposals will be considered next but in the order of the proposals set out in the new structure.

Character and conduct relevant to issues

175. Conduct evidence - Interim Report proposal.[5] The lnterim Report proposed that evidence of specific conduct should not be admissible to prove a person's tendencies unless the court is satisfied that the person actually did the act concerned and that the conduct and circumstances to which the evidence relates, and the conduct and circumstances in issue, are substantially and relevantly similar. The Interim Report also dealt with the situation where there is evidence that a series of events have occurred and a particular person could have caused those events - for example, several poisonings where the accused, charged in respect of one of them, had the opportunity to cause all of them. In such a situation, it may be possible to reason that it is so improbable that the accused did not commit all the poisonings that it should be concluded that he or she did cause them all. It is, however, easy to overestimate the force of coincidence and, once admitted, such evidence can be highly prejudicial. [6] The Interim Report, therefore, also included a proposal to control the admissibility of such evidence, requiring that it be reasonably open to find that the events occurred, that the person concerned could have been responsible for them and that the events are substantially and relevantly similar. These two proposals applied in civil and criminal trials. The interim proposals also included two protections for an accused person in respect of evidence adduced by the prosecution. It was proposed that such evidence should not be admissible against an accused unless it has substantial probative value and the particular issue to which the evidence relates is in dispute.

176. Responses and recommendations. Again the proposals were generally accepted and should be implemented. Two issues require further consideration:

(a) Propensity reasoning - should it be allowed? Views differ as to whether evidence of previous conduct is or should be admissible to prove that a person has a propensity to behave in a particular way. For reasons set out in the Interim Report, the Commission remains of the view that propensity reasoning cannot be forbidden entirely. [7] As is done in the proposals, it can be indicated that, as a general rule, evidence that is relevant merely because it shows a propensity (the word tendency is used) to behave in a particular manner will not be admissible. However, cases showing a system, and cases such as R v Ball, [8] support the view that there will be cases in the future where evidence will be relevant because it does show a tendency or propensity and should be admitted and used for that purpose. [9] Because of the dangers of such evidence, controls are needed. Those in the interim proposals are appropriate and should be adopted.

(b) Notice. One commentator [10] suggested that the proposals require notice to be given where a party seeks to rely on evidence of conduct on other occasions. A party confronted with such evidence without notice of it is placed in a difficult position. Consistently with the approach taken on hearsay evidence, notice should be required. The Bill deals with the issue with proposals similar to those advanced requiring notice for firsthand hearsay evidence. [11]

177. Character evidence - Interim Report proposal.[12] It was proposed in the Interim Report that evidence of a person's character should not generally be admissible. The accused in a criminal trial, however, should continue to be able to adduce evidence of good character to show that his or her character is inconsistent with commission of the offence with which he or she is charged. Further, witnesses giving such evidence should be able to give

evidence of the basis upon which they express their opinions; and

expert opinion evidence of the accused's character (subject to the opinion evidence proposals).

It was also proposed that the prosecution should be entitled to rebut such evidence, confined to the particular aspect of character to which it relates, and an accused should be able to lead expert opinion evidence about a co-accused against that co-accused.

178. Responses and recommendations. The interim proposals received general support and should be adopted. Several issues, however, need to be considered in relation to rules proposed for character evidence relating to the accused which is relevant to the issues.

(a) Leave. One commentator [13] pointed out that the law in all jurisdictions but one [14] requires that leave be sought by the prosecution to cross-examine the accused where the accused adduces evidence tending to show good character. The interim proposals did not specifically require leave. Leave should be required. It is preferable that the issue be resolved before any cross-examination of the accused begins.

(b) Rebuttal evidence. The Interim Report legislation did not permit the prosecution to adduce evidence in rebuttal of expert testimony led by an accused. It was intended that it do so. [15] Such a provision is warranted. [16]

(c) Whether rebuttal evidence was limited to evidence in the form of opinion or reputation? The interim proposal [17] created an exception to the general rule excluding evidence of character for the accused. The exception was for evidence of 'opinion as to the reputation' of the accused. It was also proposed that, where evidence of that kind has been admitted, the proposed exclusionary rule would not prevent the admission of evidence to 'contradict it'. Doubts were raised whether the prosecution could meet character evidence with evidence of specific misconduct - for example, by adducing evidence of prior convictions for trafficking in heroin where an accused had adduced evidence of a general nature with a view to bolstering up his or her character. It was suggested that the Commission should adopt the language of the Crimes Act 1900 (NSW) s 413B which allows evidence that the accused is 'either generally or in a particular respect, a person of good character' to be adduced by the accused and in rebuttal. The proposal has been altered to meet the issues raised. In substance, the Bill still provides an exception to the general rule excluding character evidence for evidence that tends to prove that the accused is either generally, or in a particular respect, a person of good character. Where such evidence has been admitted the Bill now provides an exception for prosecution evidence that rebuts the effect of the particular defence evidence admitted.

Evidence relevant to the credibility of witnesses

179. Interim Report proposal.[18] It was proposed that with the exceptions outlined below, evidence as to the credibility of witnesses (including parties) should not be admissible.

(a) Cross-examination on credibility - general proposal. The Interim Report provided that, in civil and criminal proceedings, cross-examination on credibility should be permitted but substantial probative value on the question of credibility should be required for admission of evidence so obtained.

(b) Cross-examination on credibility - the accused. It was proposed that, as at present, there should be additional protections for the accused in a criminal trial. Leave should be required. It should only be given in exceptional circumstances and then only where the accused's own evidence has attacked the credibility of a prosecution witness. Evidence of the accused's conduct in the events the subject of the prosecution or in the investigation of those events should not be treated as such an attack. Exceptions to the leave requirement were provided where the cross-examination related to bias, motive to be untruthful, physical or mental condition or prior inconsistent statements. Finally, a co-accused should not be permitted to cross-examine (as to credibility) another accused who has not given evidence against that co-accused.

(c) Adducing credibility evidence. It was proposed that parties to civil and criminal trials should not be able to adduce evidence about the credibility of a witness through other witnesses unless the substance of the evidence had been denied by the former witness in cross-examination and leave had been obtained. Under the interim proposals, however, the evidence that could be adduced was limited to evidence showing that a witness:

was biased, or had a motive to be untruthful, lacked the opportunity to observe the relevant event, was subject to a mental or physical incapacity or had made a prior inconsistent statement; or
had knowingly or recklessly made a false representation while under a legal obligation to tell the truth.

The party against whom such evidence was led should be entitled to rebut it. It was also proposed that evidence as to the credibility of the maker of a representation who has not given evidence should be admissible to the same extent as it would be if adduced in cross-examination of the maker of the representation.

(d) Evidence of accused's character. The interim proposal referred to above [19] relating to character evidence adduced by the accused could be used also on the issue of the credibility of the accused.

180. Responses and recommendations. The approach taken received general support and should be adopted, with the modifications noted below. Several important issues emerged in discussion of the proposals.

(a) Credibility evidence relevant for other purposes. In a trial, evidence of the events in question may reflect badly on one or more of the parties and arguably in such a way as to affect their credibility as witnesses. The interim proposals on credibility had the effect that evidence relevant to facts in issue and to credibility could not be used to assess the credibility of a witness unless the evidence satisfied the rules proposed for evidence relevant only to credibility. The issue was raised [20] whether the proposal [21] would prevent a party relying upon evidence that contradicted a witness' evidence to attack the credibility of the witness. This result was not intended and should not occur under the interim proposal. [22] The reason for the provision was a concern to avoid the misuse of evidence. The interim proposal, however, requires the court to engage in the mental gymnastics of taking evidence into account for one purpose but not another. The Commission has tried to avoid this elsewhere and takes the view that it should be avoided here. It has, therefore, removed the limitation in the interim proposal on the use to which evidence relevant to the issues and credibility may be put.

(b) Cross-examination of accused on credibility. This is an area of considerable controversy. The law differs throughout Australia. In all States and Territories, except New South Wales and South Australia, there is legislation which provides that an accused may not be cross-examined as to prior convictions or bad character unless

... the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution or of any other person charged in that criminal proceeding: Provided that the permission of the court to ask any such question (to be applied for in a trial by jury in the absence of the jury) must first be obtained. [23]

Subtle distinctions permeate this branch of the law. [24] The New South Wales and South Australian legislation differs substantially from that of the other States. In New South Wales there is a discretion given to the trial judge to prevent cross-examination of an accused as to his or her criminal record. Where such cross-examination is permitted, it is limited to matters which are relevant to credibility alone. The protection is not lost unless the 'main purpose' of the cross-examination of the prosecution witnesses by the defence is to 'raise an issue as to the witness' credibility'. In South Australia, the shield is not lost where the imputations are 'such as would necessarily arise from a proper presentation of the defence'. Moreover, in both jurisdictions, imputations relating to conduct during the events of the alleged crime, the investigation and the trial cannot lead to loss of the protection. The legislation in the other States and Territories has been a serious problem for many Years. The recent decision of the High Court in Phillips [25] has exacerbated the situation. [26] It has the effect that an accused who contests the prosecution case is always at risk of being cross-examined about past misconduct. An accused with prior convictions can be forced not to give evidence in his or her own defence. [27] The approach taken in New South Wales is to be preferred but may be criticised on the ground that it enables the accused to be cross-examined as to credit even though the accused has given no evidence attacking the credibility of the prosecution witnesses. In that situation an assessment of the accused's credibility is not relevant to an assessment of the attack made in cross-examination of the prosecution witnesses as to their credibility.

The interim proposal [28] received some support from those involved in the defence of accused persons although some took the view that there should be no cross-examination of the accused as to credit. It was opposed by those involved in the prosecution of offences on the grounds that it was too restrictive. A particular concern of those critics was the requirement that leave should only be given in exceptional circumstances.

The High Court in several cases has commented that cross-examination of the accused as to character and prior misconduct where this is relevant only to credibility is something that should be exceptional. [29] These comments have been made in the context of legislation (applying in most jurisdictions) that permits cross-examination where the 'nature or conduct of the defence' involves imputations on the character of prosecution witnesses. As all defences involve denials of some part of the evidence, they inevitably involve an attack on the character of prosecution witnesses. For that reason and in that context, in particular, it is necessary to emphasise that an attack on the accused's credibility should be exceptional. Under the interim proposal, however, the circumstances in which the accused's character might be attacked were limited to the case where the accused's own evidence tended to attack the credibility of a prosecution witness. Further, it must have been adduced solely or mainly for that purpose and not relate to the events in question or their investigation. The risk of wrongful conviction because of the prejudice created by the attack on the accused's credibility remains under this proposal, but, if leave is required and the circumstances which enable such cross-examination to occur remain limited in this way, the accused is likely to be so crossexamined only in exceptional circumstances. The tighter rules on crossexamination and the probative value/prejudice provide added protection. The problem is one of striking the correct balance. In all the circumstances, it is proposed that the interim proposals be implemented subject to the requirement of 'exceptional circumstances' being removed.

(c) Evidence rebutting denials in cross-examination as to credit. There was general acceptance that the law unduly limits the scope of evidence that can be admitted to rebut the denials of a witness made during crossexamination about the credibility of that witness. [30] There was disagreement, however, about the extent to which a party should be allowed to rebut a witness' denials of an attack on his credibility. The objective of the interim proposals was to limit cross-examination but to expand the circumstances in which rebuttal of denials in cross-examination would be allowed. Ideally, the two should match. The broadest option would be [31] simply to require that the evidence adduced to rebut the witness' denials on matters going to credibility should have substantial probative value as to the credibility of that witness. This would match the proposal that would control the original attack made in cross-examination. [32] The Commission is concerned, however, about the risk of proliferation of evidence and the resulting impact on time and cost that could result from such an approach. It takes the view that categories of evidence that can be adduced at present should be retained but widened.

Doubts were raised about whether, as was intended, the interim proposals ensured that evidence could be led to show that a witness could not have been present at or physically observed the events in question. Such doubts should be removed. Representations were also made that the legislation should enable evidence to be led of convictions of a witness that a witness has denied. This should be provided. It should not lead to evidence of parking infringements being investigated. The witness must first be cross-examined about any prior convictions and, for that to be allowed, the conviction must have substantial probative value on the issue of the credibility of the witness.

Finally, submissions were made that the proposal should be broken up into two parts - one dealing with the existing categories where rebuttal evidence is allowed and the other with the new categories. This would enable different treatment - in particular, the proposed leave requirement could be restricted to the new categories. It was argued that, as to the existing categories, leave is not required at present. The Commission recommends that this be done. While this complicates the draft, it more closely reflects the policy objective of widening the possibilities of adducing rebuttal evidence.

(d) Evidence of the accused's character. The new arrangement into two Divisions requires the repetition of the provisions dealing with evidence of the accused's good character adduced by the accused. [33]

181. Apart from the above concerns, the interim proposals were supported. It is recommended that they be implemented subject to the above changes.

Footnotes

[1] ALRC 26 vol I, para 784ff.

[2] The validity of the distinction has been questioned: Zuckerman 1982, 128ff. He points out that evidence relevant to the credibility of a witness is also thereby relevant to the issues. The distinction made in the proposal, however, depends on whether the evidence is relevant only because it relates to the witness' credibility or not.

[3] Evidence Bill 1987 Pt V, Div 5.

[4] id, Div 6.

[5] ALRC 26, vol I, para 784ff.

[6] In the sense that it may raise irrational prejudices in the mind of the court.

[7] ALRC 26, vol I, para 400-1, 787, 810, 812-16; vol II, App C, para 169-70.

[8] [1910] UKLawRpAC 59; [1911] AC 47.

[9] See also examples in App C, para 23 of this Report.

[10] Mr DM Byrne QC, Submission 87 (May 1986).

[11] Above, para 127, 143(e): regulations prescribe the form of notice and time for giving it. The Bill deals with failure to comply with the requirements - cl 90.

[12] ALRC 26, vol I, para 784ff.

[13] Mr P Waight, Submission 32 (3 December 1985) 9.

[14] New South Wales. Enquiries there showed that in practice the issue is usually canvassed before any cross-examination is begun. This is a de facto leave procedure.

[15] ALRC 26, vol I, para 805.

[16] See eg Australian Federal Police, Submission 60 (5 March 1986) 3.

[17] Interim cl 94, 95.

[18] ALRC26,vol I, para 784-800, 817ff.

[19] para 177-8.

[20] The Hon Justice CW Pincus, Federal Court of Australia, Submission 1 (November 1985) 13-4; DPP (Cth) Submission 70 (4 April 1986) 2.

[21] In particular interim cl 82:

(1) Evidence that relates to the credibility of a witness is not admissible to prove that the evidence of that witness should or should not be accepted.

(2) Where evidence that relates to the credibility of a witness is relevant otherwise than as mentioned in subsection (1), it may not be used for the purpose mentioned in that subsection.

[22] Since evidence that contradicted the witness would not in itself be evidence that 'relates to the credibility of the witness' who was contradicted. The argument as to credibility arises from the conflict between the evidence of the witness relevant to the issues and the evidence of the contradicting witness. This, however, is a difficult distinction.

[23] Evidence Act 1977 (Qld) s 15(2)(e).

[24] See ALRC 26, vol II, App C para 186ff.

[25] [1985] HCA 79; (1968) 60 ALJR 76.

[26] See App C, para 25-6 of this Report.

[27] See Aboriginal Legal Service Ltd (NSW) Solicitors, Submission 30 (28 November 1985) 1-2.

[28] Above para 179.

[29] See App C, para 25 this Report.

[30] As to the current law, see ALRC 26, vol I, Para 172, 409; vol II, App C para 181-5. At present rebuttal evidence is allowed only for categories of evidence - for example bias, prior convictions, prior inconsistent statements.

[31] Mr PM Donohoe, Barrister, Submission 88 (28 May 1986).

[32] It requires substantial probative value: see interim cl 83(2) and Evidence Bill 1987 cl 96(2), para 179(a) above.

[33] Above para 177-8.

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15. Commentary - identification evidence

Introduction

Identification parade

Use of police pictures

Directions to juries

Footnotes

Introduction

182. Interim Report approach.[1] The interim proposals related to eye-witness identification evidence in criminal trials. It was defined to include both evidence by the eye-witness of an identification and reports by a third person of an identification made by an eye-witness. Rules controlling the admissibility of such evidence were proposed. In addition, the Interim Report contained proposals about directions to be given to juries about identification evidence.

183. Responses. The interim proposals received strong support [2] and strong opposition. [3] This is not surprising considering the importance of the topic and the fact that the interim proposals involve a departure from the existing law. While the courts have acknowledged that eye-witness identification can be unreliable and, in some of its forms, prejudicial, the only protections presently provided at the trial comprise:

a discretion to exclude prejudicial evidence;

a discretion to warn the jury of the dangers of identification evidence - the content and limits of which are unclear; and

in some jurisdictions, a discretion to direct an acquittal where, for example, the identification evidence is suspect and the identification is not supported by other evidence.

It is for the accused to persuade the trial judge to exercise those powers. The form of the controls suggests an assumption that eye-witness identification evidence is not qualitatively different from other eye-witness evidence. They also imply an assumption that the participants in the criminal trial - prosecutor, defence counsel, accused and judge or magistrate - will generally have an adequate understanding of the factors that render eye-witness identification inadequate.

184. Conclusion. The Interim Report concluded that these assumptions are not warranted. That conclusion was not challenged. The Commission was and remains of the view that, like other evidence that is unreliable and open to serious mis-estimation, [4] eye-witness identification should be the subject of rules of admissibility and tighter discretionary controls. [5] The issues raised in discussion of the proposals are best considered by an examination of each of the proposals.

Identification parade

185. Interim Report proposal. Because of the unreliability of eye-witness identification and the risk of misestimating its weight, it was proposed that eye-witness identification evidence should not be admissible in criminal proceedings unless an identification parade had been held or it was not reasonable to have held an identification parade before the identification was made. Whether an identification parade would be reasonable would depend on when it could be held and the availability of appropriate people. Under the proposal it was presumed that it would not be reasonable to bold an identification parade where the suspect had refused to co-operate because be or she wanted a lawyer present and it was not reasonably practicable for the lawyer to be present. In the Interim Report, a number of qualifications to this blanket requirement were considered. [6] The qualification adopted - that non-compliance be excused where it would not have been 'reasonable' to have held a parade - was that suggested by the National Police Working Party. [7] This would enable the seriousness of the offence, the importance of the eye-witness identification and the practicality and appropriateness of an identification parade to be considered.

186. Response to proposals.The interim proposal received considerable support. It was also criticised as rigid and unrealistic, in that it requires identification parades in all or almost all cases. [8] In fact, the proposal is not rigid and clearly does not require identification parades in every case. Failure to hold a parade would not automatically result in exclusion. It would only do so if it would have been reasonable to have held a parade. This proposal introduced a significant discretionary element. Obviously there will be practical concerns, such as the availability of people for identification parades and the accused refusing to take part. Such matters are covered by the reasonableness qualification. An alternative suggested was that the proposal be qualified by permitting evidence, obtained without a parade, to be given even though it was reasonable to have held a parade if the court considers the reliability of the evidence warrants its admission. [9] Little would be gained by such a clause. In the absence of a parade, the reliability of the evidence will often be open to attack. Paradoxically, to base a rule of admissibility on the ground of reliability may well exclude more evidence than the interim proposal. The interim proposal's aim was to make identification evidence less unreliable. It did not require the court to consider whether it was reliable.

187. Recommendation. Consideration has been given to providing more guidance as to what may or may not be 'reasonable'. For example, if the eyewitness saw someone he or she knew committing the crime, there would be little point in holding a parade. It is not possible, however, to draft an exception on this basis because of the range of knowledge or acquaintance that may be involved in particular cases. Similar problems arise in drafting an exception where the defendant refuses to co-operate. The proposals have been amended, however, to make it clear that, in deciding the reasonableness question, the appropriateness of holding a parade is a separate consideration and it is relevant to consider whether the suspects refused to co-operate, whether the identification was made at or about the time of the offence and the relationship between the defendant and the identifier. Subject to these changes it is recommended that the interim proposals be implemented.

Use of police pictures

188. Interim Report proposal.[10] It was proposed that evidence of identification by police photographs, if adduced by the prosecution, should not be admissible unless the photographs used included those of people without criminal records, or the photograph of the accused was one taken after be or she was taken into custody. Where the suspect was in the custody of police, identification evidence based on police photographs should not be admissible unless an identification parade had been held beforehand or it would not have been reasonable to have held such a parade. The same regime should apply to identification by 'Identikit' and like pictures.

189. Interim Report proposal - rationale. Specific proposals were advanced because evidence of identification using police photographs and other pictures carries the dangers of unreliability and prejudice. Identification by picture is, on balance, a less reliable method of identification and introduces information which is likely to distort the witness' memory. Where the suspect is in custody the identification attempted first should be one in an identification parade and not, as has happened, in an identification parade after viewing pictures. In the latter situation it is likely that the person identified is the person seen in the picture whether that person committed the crime or not. Prejudice can arise in at least two ways from the use, in particular, of photographs.

(a) Admitting the photographs. If the photographs are received in evidence and that alleged to be of the accused appears to be a 'mug-shot', it will be assumed that the accused has a criminal record.

(b) Evidence without photographs. It is possible to give the identification evidence without producing the actual photographs. In the absence, however, of any evidence that the photographs included people without criminal records, it will be assumed at the trial that the photographs were of people with criminal records and that the accused has a record.

There can be no doubt that such assumptions will seriously prejudice the fair trial of the accused in all cases. We delude ourselves if we think otherwise. The courts, despite occasional protests by them, have not acted to deal with the problems. [11] For these reasons the proposals were developed.

190. Response and recommendation. The interim proposals were supported. They were also criticised as:

(a) Unnecessarily technical. It was argued that it may be possible for cogent evidence to be rejected because the wrong photograph of the accused was used. [12] The argument begs the question. It ignores the concern to minimise the risk of wrongful conviction. It ignores the unreliability of such evidence and the specific prejudice posed by it.

(b) Impractical and burdensome. Criticism was directed at the proposal that the photographs used include photographs of persons who were not in police custody at the time the photographs were taken. In one submission it was argued that:

the proposal will necessitate the gathering and selection of photographs to form a comprehensive photo-library that adequately reflects the heterogeneity of Australian society ... it will be necessary to have a continuing program of taking photographs. Fashions and grooming change rapidly and this must obviously be reflected in the photo library if it is to be of any use. As it stands, the clauses place an administrative burden on police that the AFP would not be able to discharge.[13]

This comment suggests that there are inadequacies in the existing system and that the proposal would help to rectify them. Another issue raised was invasion of privacy - assuming it would be necessary to take photographs without consent. It was put that:

persons having no criminal records would have grounds to object to the unauthorised use of their photographs for the purpose of police identification. The proposal, as presently drafted, exposes police to criticism of intrusive conduct and breach of privacy.[14]

In the Commission's view, if there is a need to obtain additional photographs, there are various ways it can be done. [15] This has been conceded by those involved in law enforcement. It could be a burden, but if it is not done, there is no way an accused person can deal with the inevitable and considerable prejudice that flows from the use of photographs of 'rogues'. The task may not be a simple one. The problem is, however, that if nothing is done, the present scandalous situation will continue in which identification evidence based on 'mug shots' is adduced, the tribunal will assume that the accused has prior convictions and the accused will be denied a fair trial. To continue as at present can only undermine confidence in the criminal justice system.

Other aspects of practicality were also questioned. Will excessive time be involved in evidence and legal argument to determine whether the rule is satisfied? [16] It should not. The prosecution has to establish no more than that there was a reasonable number of photographs of persons who were not in custody at the time the photographs were taken. It is reasonable to expect that systems would be introduced that would enable the issue to be dealt with by short and uncontroversial evidence. Once the prosecution has adduced evidence of the inclusion of a reasonable number of photographs of the kind required, that would end the matter.

(a) Pictures. The interim proposal applied to 'photographs' and 'Identikit pictures'. Modern technology enables images to be created and presented in many ways and to tie the proposals to these terms would limit its operation. [17] The term 'pictures' has been used instead of 'photographs' and 'Identikit picture'.

Subject to the above changes, the interim proposal should be implemented.

Directions to juries

191. Interim Report proposal.[18] It was proposed that the judge should, on request of the accused, warn the jury of the need for caution in acting on eyewitness identification evidence. In particular, the jury should be warned not to find that the defendant committed the relevant offence on the basis of identification evidence unless there were either special circumstances in relation to the identification or substantial evidence, other than identification evidence, implicating the accused. In the absence of such evidence, the court should direct an acquittal. Unrepresented accuseds should be advised of their rights.

192. Response and recommendation. The proposals have been criticised on the ground that they should be mandatory rather than at the request of the accused. [19] They have also been criticised on the ground that they go too far: the judge's obligations should be entirely discretionary and there should be no power to take the issue away from the jury. [20] Both positions are too extreme. There will be cases where a warning may not be necessary. On the other hand, the other view represents the present unsatisfactory position. The interim proposals follow the recommendations of the Devlin Committee. [21] The problems, documented in the Commission's Interim Report, include that we too readily accept identification evidence, we do not appreciate or understand the problems associated with eyewitness identification and we tend to give too much weight to it. [22] These conclusions were not directly challenged by commentators. In these circumstances, it is appropriate to make the recommendations. It may be that in time we will all fully appreciate the problems associated with identification evidence and give it the weight it deserves. There is, however, a problem which needs to be addressed now. The interim proposal strikes the appropriate balance. It should be implemented.

Footnotes

[1] ALRC 26 vol I, para 824ff.

[2] eg Mr B Kayser, Criminal Bar Association (Vic) Submission 72 (20 March 1986) 4; Council for Civil Liberties (WA) Submission 11 (November 1985) 4-5.

[3] eg Northern Territory Police, Submission 5 (14 November 1985) 4-5; DPP (Cth) Submission 36 (January 1986) 11; Australian Federal Police, Submission 55 (24 December 1985) 3, Submission 60 (5 March 1986) 4, Submission 86 (14 May 1986) 5.

[4] eg hearsay, character, misconduct.

[5] For discussion of psychological research and dangers, see ALRC 26, vol I, ch 18.

[6] ALRC 26, vol I, para 832.

[7] ALRC 26, vol I, para 832, n 22.

[8] eg Australian Federal Police, Submission 60 (5 March 1986) 4, Submission 86 (14 May 1986) 4-5.

[9] Australian Federal Police, Submission 86 (14 May 1986) 4.

[10] ALRC 26, vol I, para 835.

[11] The existing law is also unclear: ALRC 26, vol II, App C, para l89ff.

[12] DPP (Cth) Submission 36 (January l986)10.

[13] Australian Federal Police, Submission 86 (14 May 1986) 4-5.

[14] Australian Federal Police, Submission 86 (14 May 1986) 5; Law Society of Tasmania, Submission 81 (May 1986) 1-2. It should be noted that it is assumed that there is no invasion of privacy involved in the subsequent use of photographs already obtained of persons taken into custody.

[15] One way is to use computer graphics technology to create pictures from other pictures such as photographs. Parts of those photographs can be used and combined. These techniques are being used successfully by one of the consultants assisting on the reference, Dr Don Thomson.

[16] Law Society of Tasmania, Submission 81 (May 1986) 1-2.

[17] For example, it should apply to videotape images and computer created images.

[18] ALRC 26, vol I, para 840ff.

[19] eg Council for Civil Liberties (WA) Submission 11 (November 1985) 5.

[20] eg Australian Federal Police, Submission 60 (5 March 1986) 4-5.

[21] Devlin report.

[22] In discussion, many instances occurred. For example, evidence of identification by several people of the accused in a parade is often cited as highly probable evidence because of the number of people who made the same identification. The reality is that it is highly probable that they are all wrong - see ALRC 26, vol I, para 416 ff.

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16. Commentary - privilege and like matters

Introduction

Client legal privilege

Confidential communications

Privilege against self-incrimination

Judge and juror

Matters of state

Settlement negotiations

Parliamentary privileges

Ancillary provisions

Footnotes

Introduction

193. Interim Report proposals. The Interim Report [1] proposed a number of rules to enable evidence to be excluded on objection being taken to it, for reasons based on public policy considerations. The rules or privileges related to:

confidential communications;

evidence that may tend to incriminate a witness; communications and documents connected with the provision of legal assistance; and

communications between spouses.

In addition, the Interim Report proposed rules to enable evidence to be excluded for reasons based on public policy, whether or not any party or witness objects. They related to evidence of

matters of state;

judicial officers and jurors as to their reasons for decision; and

statements made in the course of settlement negotiations.

In all instances the court was obliged to satisfy itself that witnesses were aware of their rights. The Interim Report also recommended the abolition of several ancient privileges. [2]

194. Responses to proposals. There was strong support for the inclusion of rules dealing with the above matters with the exception of the privilege relating to confidential communications. There was considerable discussion about the detail of most of the proposals. They [3] attracted as much interest as any other group of proposals. In this chapter, the issues raised will be considered in the context of each proposal. The order of proposals reflects the order in the Evidence Bill. It is different to that in the Interim Report legislation. [4]

Client legal privilege

195. Interim Report proposal.[5] It was proposed that, on objection by or on behalf of the client concerned, the court should prevent the giving of evidence of the contents of the following confidential communications and documents.

(a) Communications for advice. Communications between lawyer and client (and between lawyers engaged by the same client) made for the dominant purpose of providing legal advice to the client. The lawyer's normal obligations to claim the privilege on behalf of the client in the absence of instructions to waive it would not be disturbed.

(b) Communications for litigation. Communications between lawyer or client and a third party (including the client's employees and agents) made for the dominant purpose of providing or receiving legal services in connection with pending or anticipated litigation. Similar provisions should apply in relation to the unrepresented litigant.

(c) Documents, etc. The protection should extend to documents (such as notes, memoranda, opinions and advices of the lawyer and records of communications) prepared for the same purposes and whether delivered or not.

It was proposed that the privilege should not apply to communications to the prosecution unless a client/legal adviser relationship is shown to exist between those involved in the communications. The privilege should operate indefinitely, and should be able to be claimed or waived by the successor to the client's rights and obligations in relation to which the privileged communication was made or document created. The privilege should not apply to facts or things actually observed by the lawyer unless to give that evidence would involve disclosure of privileged material. In an action between clients of the same lawyer, it should not apply to prevent the giving of evidence of communications and documents related to the matter on which the lawyer was consulted by them. It was proposed that the privilege should be lost if the client consents or voluntarily discloses the substance of the communications or documents unless the disclosure was to a co-client, was made for the purpose of obtaining or giving legal assistance, was obtained by duress or deception or was compelled in error. The privilege should not protect communications or documents prepared in furtherance of a crime or fraud, prevent a court from enforcing an order of a court or result in the withholding of evidence relevant to the defence of an accused. The privilege should not be lost simply because evidence of the communication or material was disclosed accidentally or obtained illegally.

196. Issues raised. Several specific matters were raised.

(a) Communications for legal proceedings. There was a gap in the interim proposal. It should refer to current as well as anticipated and pending proceedings.

(b) The relationship with public interest privilege.Attorney-General for the Northern Territory v Kearney[6] raises the issue of the relationship between client legal privilege and public interest privilege [7] where governments seek legal advice. The view of the Chief Justice in that case should be followed. Both privileges should be available. Client legal privilege, when applied to the Crown, should not be swallowed up in public interest privilege.

Evidence relevant to intention or competence. The interim proposal [8] lifted the protection of the privilege in respect of evidence of the intentions or competence of a client or party who has died. This loss of protection would only operate where an issue arises of, for example, testamentary capacity or the intentions of the deceased in a testator's family maintenance case. It does not override rules of substantive law, such as those relating to the construction of wills and other instruments. [9]
Evidence needed for defence of accused. The Interim Report included a proposal that the privilege not apply where it would prevent the giving of evidence that could assist an accused person's defence. This proposal was too wide. [10] In particular, in joint trials, it would have removed the privilege so far as the co-accused was concerned. The lawyer for each accused could be questioned about the instructions he or she had received on the basis that this would assist the other accused. [11] The provision, therefore, should be limited so that it operates only in respect of evidence adduced by a defendant in a criminal proceeding and should not operate in respect of communications between persons charged with related offences and their lawyers.
Communications affecting rights. Commentators [12] questioned the interim proposal removing protection of the privilege for a communication that 'affects a right of a person or a communication that gives rise to right of action by a person'. The former was said to be too vague and the latter too broad. The first - communications affecting a right of a person - must be retained to cover situations where a communication between the client and the lawyer has had the result of creating, limiting or terminating a person's rights. [13] The second aspect - a communication giving rise to a right of action by a person is better dealt with under the proposed fraud, crime exception.
Duration of the privilege. It was not always appreciated and should be emphasised that, under the proposal, where the client died, the privilege should continue but its exercise should pass to the personal representative. [14] Similarly, the privilege should be available to successors in title. [15]

197. The fraud, crime exception. Under the interim proposal [16] the proposed client legal privilege would not apply to communications made or documents prepared in furtherance of the commission of

a fraud;

an offence, or

an act that renders a person liable to a civil penalty.

The first two of these categories represent the traditional interpretation of the common law. [17] The inclusion of the third category - civil penalties - is consistent with the justification for dealing with the first two. An issue that arises is whether further categories should be added.

198. The commonly held assumption, that only communications in furtherance of a crime or fraud would not be protected, no longer holds true. It is clear since the decision in Attorney-General for the Northern Territory v Kearney[18] that communications made to further a deliberate abuse of statutory power, or to prevent others from exercising their rights under the law, will not be protected by client legal privilege. This is the narrow interpretation of that case. Statements in the case suggest that the scope of the exception to the privilege may in fact be much wider. The law is left in an uncertain state. The rationale of client legal privilege is, broadly, to assist in the due operation of the legal system. It would be inconsistent with that rationale to protect communications between lawyer and client where the communication was to aid deliberate conduct which is contrary to the law - whether crime, fraud, breach of contract or tort. Wigmore considered the question:

Looking at the reasons of policy upon which it rests they appear by their natural limits to end with the same conclusion. They predicate the need of confidence on the part not only of injured persons, but also of those who, being already wrongdoers in part or all of their cause, are seeking legal advice suitable for their plight . . . But these reasons all cease to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing. From that point onwards, no protection is called for by any of these considerations.

Upon this much there has been a fair consensus among all who have declared themselves upon the subject. But certain minor points of detail still remain, if a practical rule for disclosure is to be settled upon:

(1) Must not the advice be sought for a knowingly unlawful end?

(2) Must not that unlawfulness be either a crime or a civil wrong involving moral turpitude?

(3) Must not the attorney have so far abandoned his professional attitude as to have become, by assent to the design, a participant in the client's intended wrong?

... Looking at the reasons for the privilege, and construing it as strictly as possible, the first of the above three questions should be answered in the affirmative, but the second and the third in the negative.[19]

It cannot be regarded as in the public interest that legal advice be obtained to further the commission of unlawful activity. Nonetheless, it is important that clients be able to approach a lawyer (with a view to acting lawfully) to ascertain whether their plans are appropriate or would be within the law, without being constrained by fears that their words may later be used against them. One way to draw the appropriate line is to focus on the intention of the client at the time of the communication. Consideration was given to a proposal that the Privilege should not protect a communication or document that the client knew or ought reasonably to have known was made or prepared for an unlawful purpose. Such a proposal can be supported in principle. If the consultation is, objectively viewed, in furtherance of 'unlawful activity' and it is deliberately so, at that stage legal professional privilege should 'take flight'. [20] The difficulty with such an exception, however, is that it could be raised in respect of all communications passing between the client and the lawyer. It would create a situation where the lawyer and client could have no certainty about whether their communications were protected or not. A narrower formula needs to be found. It would be consistent with principle to extend the exceptions to communications in furtherance of deliberate abuse of statutory power. Such conduct can be said to be a fraud on the power. It is recommended that this be included.

199. The limits of the Terms of Reference. The Terms of Reference limit the Commission to considering the application of the privilege in the courtroom where evidence is sought to be given. Situations may arise where a party obtains access to documents [21] outside the courtroom which are protected in the courtroom by the proposed privilege. [22] Under the proposal, the privilege will still apply in the courtroom unless the client voluntarily disclosed the document. [23] Having wider access on discovery or under a search warrant is usual. Access is not determined by the rules of admissibility such as relevance and hearsay. It is not unreasonable to have wider access in the investigative stage.

200. Recommendations. Subject to the above changes, the interim proposals should be implemented. [24]

Confidential communications

201. Interim Report proposal.[25] It was proposed that the court should have a general discretion to protect communications and records made in circumstances where one of the parties is under an obligation (whether legal, ethical or moral) not to disclose them. This should apply to relationships such as minister of religion and parishioner, doctor and patient, psychotherapist and patient, social worker and client and journalists and their sources. Matters to be taken into account in exercising this discretion should include the need for the evidence, the damage which would occur to the particular relationship by the en enforced disclosure of confidential communications and the deterrent effect on similar relationships. It was proposed that the onus of proof be on the person seeking the protection of the clause.

202. Responses. A number of submissions from those involved in the prosecution of offences were strongly opposed to any such privilege. [26] The submissions forecast serious difficulties in the prosecution of offences because of the loss of evidence that would result from the proposal. On the other hand the Catholic Church and the Lutheran Church made submissions supporting a priest/penitent privilege for sacramental confessions. They and other churches also argued for a privilege for communications where religious or spiritual advice is sought. Other commentators - for example, doctors, anthropologists, counsellors and journalists - sought protection for confidential communications received from patients, clients and sources, arguing that the proposal did not go far enough.

203. Recommendations. At present, it is in only three jurisdictions that there are privileges protecting communications between a minister of religion and parishioner and between a doctor and patient. Apart from these specific privileges, [27] other confidential communications can be protected indirectly by the court in the exercise of its contempt powers where a witness refuses to give evidence. The court can deal with such a situation through its discretionary powers of sentencing. The proposal would enable the court to decide how to deal with the unwilling witness at an earlier and more appropriate stage. It must be acknowledged that it would create a new situation. Under present law, the unwilling witness would not be offered an opportunity to be unwilling. The unwilling witness would have to assert his unwillingness without invitation. This may result in some unwilling witnesses giving evidence who would not do so if given the opportunity to seek exemption. At the same time the interim proposal would give the court power to protect confidences in circumstances not presently protected. Strong and persuasive representations have been made to the Commission for protection of these confidences in some situations. Many, such as doctors, ministers of religion, journalists and social workers, could point to a public interest in preserving confidences in some cases and, in some situations, a clash between their professional ethics and the law. It could not be demonstrated, however, that blanket privileges were needed rather than the proposed discretion. The proposal should be adopted. Specific matters should be addressed, however, to tighten the proposal, particularly in criminal proceedings. It should be provided expressly that:

communications affecting rights should not be protected, and

communications for the furtherance of crime, fraud and the like should not be protected. [28]

In addition, where matters relevant to the exercise of the discretion to protect confidential communications are listed in the proposed legislation, there should be added:

whether any and, if so, which, person involved in the communication consents to the giving of the evidence, and

whether, and to what extent, the contents of the communication have been disclosed. [29]

204. A special privilege for communications with ministers of religion? Strong representations were made that, in addition to the general discretionary proposal, there should be a special privilege protecting communications passing between a minister of religion and a member of his or her church. An examination of the issue reveals a wide variety of relevant situations, practices and penalties. For example, taking the Christian Churches alone:

(a) Catholic. The Catholic Church requires its members to receive the sacrament of penance at least once a year. This involves private confession by the penitent to a priest. If the priest were to reveal what was said to any other person he would be immediately excommunicated. He may reveal what was said if and to the extent that the penitent gives consent.

(b) Lutheran. In the Lutheran Church, the sacrament exists but it is not obligatory. The minister takes an express vow on ordination never to divulge sins confessed to him. To break the sea] of the confessional does not result in immediate excommunication but would be likely to result in disciplinary action.

(c) Greek Orthodox. In the Greek Orthodox Church, the sacrament exists. It is not obligatory. No express vow is taken on ordination. Disclosure would not result in automatic excommunication but could result in disciplinary action.

(d) Uniting. In the Uniting Church, penance and confession are possible but not as a sacrament. Disclosure by a minister without consent would result in questioning the person's ability to discharge his or her duties.

(e) Anglican. In the Anglican Church, the treatment of penance can range from an approach similar to that of the Catholic Church - the making of a confession being sacramental and obligatory - to one similar to that of the Uniting Church. Breach of the confidence, without consent, would be seen as a serious matter but no fixed penalty would attach.

Apart from the penitential situation, there are, in all churches, situations where the minister receives confidences in giving spiritual and non-spiritual pastoral care. Some may lead to a sacramental confession. Some may not. Here situations arise similar to those in which doctors, social workers and others find themselves. This will be so in situations where the advice sought or given is spiritual advice.

205. Specific privilege - recommendation. It may be possible in this variety of situations and approaches to identify those where the confidentiality should always be preserved in the exercise of the proposed discretion. The variation is such, however, even in the case of the sacramental confession, that it is preferable to adhere to a discretionary approach such as that suggested in the Interim Report. [30]

206. Dissent. One member of the Division [31] favours a separate privilege for confidential communications passing between a member of the clergy and a person making a confession to or seeking religious or spiritual advice or comfort from that member. At first sight it might not appear that much importance should attend the question of a privilege for confidential communications of one kind or another passing between members of the clergy and persons making a confession to or seeking spiritual advice from them. There is presently no protection of any kind in respect of such communications in Commonwealth legislation or in the laws of New South Wales, Queensland, South Australia or Western Australia. In spite of this, no one was able to refer the Commission to any instance of a member of the clergy being required by an Australian Court to give evidence concerning such communications. Moreover, the submissions from the Churches acknowledged that the Commission's discretionary proposals [32] would, if implemented, give considerable protection to such communications; whereas now they have none.

207. Even so, the Churches consider that an important question of principle in Church-State relationships is involved. They think that at a time when law reform is being proposed the issue should be dealt with in accordance with proper principles even though it has not hitherto given rise to any problems in practice. The representatives of the Churches pointed out that under the discretion it was clearly open to a court to direct members of the clergy to disclose confidential communications and that it was equally clear that they would be in contempt of court if they refused to comply with such a direction.

208. Irrespective of their denomination, the members of the clergy to whom the Commission spoke were all adamant that they would refuse to give evidence of confidential communications and would go to jail rather than do so. In response to assurances that it was virtually impossible to envisage that under the discretion a clergyman would ever be required to give evidence about confidential communications, they replied, not unnaturally, that there would then be virtually no objection to an absolute privilege.

209. Section 116 of the Constitution provides, amongst other things, that the Commonwealth shall not make any law for prohibiting the free exercise of any religion. In considering the ambit of the exercise of a religion, a Church should not be treated as if it were no more than a club for good people. It is commonly seen as integral to the free exercise of religion that members of the clergy should be able to advise and console those who may have fallen by the wayside. Implicit in some of such activities are the promotion amongst sinners of sorrow for and detestation of sin, coupled with a firm purpose of amendment. These activities appear to many Australians to be an integral part of the practice of at least some religions in this country and that practice could not be freely carried out if it were accepted that members of the clergy could be obliged to give evidence of confidential communications they have received from persons consulting them for spiritual purposes. Such an obligation appears to be against the spirit of s 116.

210. In Australia there is a limited privilege in three jurisdictions, namely, Victoria, Tasmania and the Northern Territory. [33] This privilege is restricted to a 'confession'. It does nothing for members of Churches which do not have sacramental confession. A member of a church, which does not have sacramental confession, may well regard the confidentiality of a 'heart-to-heart' talk with a pastor as meriting no less protection than a sacramental confession. In a country whose Constitution does not favour one religion as against another [34] it would be unfortunate if a privilege was couched in terms which gave protection to members of some denominations but denied it to others. The President considers the existing Australian provisions are too narrow and that the privilege should extend to all confidential communications passing between a member of the clergy and a person seeking religious or spiritual advice or comfort from that member. The President does not think that a cleric who, as such, receives or imparts information in confidence for spiritual purposes should be compelled by public authorities to divulge that information except with the consent of the person involved.

211. It may be asked why this particular relationship should be given special treatment as against other confidential relationships. The answer lies in the special treatment given by the Australian Constitution to the free exercise of religion. That free exercise is, the President believes, hampered, at least in principle, if it be accepted that clerics can be compelled to divulge confidential information given to them in the course of their vocation. This is not to lessen the importance of other confidential communications such as are made to medical practitioners, social workers and the like. The President believes, however, that they can be adequately dealt with under the discretion.

212. The President suggests also that a law which enables a court to require members of the clergy to give evidence of confidential communications will be universally disobeyed by the clergy. By and large the clergy consists of a group of men and women who, when confronted with what they see as a choice between obeying a law of God and a law of man, will invariably assert the primacy of the spiritual as against the temporal. It will be a law which will be totally unenforceable. Attempts to enforce it will simply result in incarceration of the clergy and thereby generate unnecessary friction between Church and State.

213. In addition to the three Australian jurisdictions already mentioned, some 40 of the States of the USA have statutes which, in one form or another, acknowledge a privilege which exists for the protection of the citizen who has sought the help of the clergy. The President is not aware that law enforcement authorities in any of these jurisdictions, whether Australian or American, have been heard to complain that the existence of the privilege has hampered law enforcement in any significant way.

Privilege against self-incrimination

214. Interim Report proposal.[35] It was proposed that a witness should be able to object to answering a question on the ground that the answer may tend to show that the witness has committed an offence or is liable to a civil penalty. The protection should not extend to questions incriminating the spouse of the witness. No distinction should be drawn between oral and documentary evidence sought by questioning. It was proposed that if there were reasonable grounds for the claim of privilege, the court should advise the witness that there was no obligation to answer the question but that, if the witness did answer the question, the court would give a certificate which would prevent the answer being used against the witness in any future proceedings (other than for perjury in respect of the answer). In the event of an objection being overruled, it was proposed that the court should still be able to give such a certificate if it subsequently appeared that there had been reasonable grounds for the objection. No adverse inference should be drawn from the fact that privilege was claimed.

215. Response and recommendations. A varied response was received to these proposals. The optional certificate proposal would make an inroad into the privilege in most jurisdictions. Only in three jurisdictions is there a certificate procedure. [36] The proposed certificate procedure differs from them in that it leaves the decision whether the procedure will be applied with the witness and not with the judge. The Commission was of the view that this provided the best compromise between the need for a privilege and the need to make all relevant material available to the court. The problem facing a witness is not restricted to the possibility of the use in later proceedings of the evidence given. There is also the risk of the evidence given enabling enquiries to be made from which evidence may be gathered to be used against the witness. [37] Another reason for the voluntary certificate approach was that to compel a witness to testify under certificate when the witness was unwilling was likely to result in evidence of limited value. [38]

216. Some involved in the prosecution of offences argued that the optional certificate system proposed will not result in much additional evidence being available. It is reasonable to expect however, that there will be more evidence available, particularly of a formal kind. People on the fringe of criminal events - the people, the Commission is told, who are most likely to be called under the system such as the Australian Capital Territory certificate system - will have an incentive to testify if only to please law enforcement agencies in the hope of escaping their attention. The Commission recommends adoption of the Interim Report proposal.

217. Two specific matters, however, require reconsideration.

(a) Privilege claimed by a party. The interim proposals [39] provided that the privilege was not available in relation to evidence given by a party that tended to prove that the party did an act the doing of which is a fact in issue in the proceedings. This reflects the law for criminal trials in most jurisdictions where a provision applies to the effect that a person charged and being a witness may be asked any question in cross-examination notwithstanding that it would tend to incriminate that person as to the offence charged. The proposal, in its application to civil trials, went further than existing law. In civil trials, it appears that a party who gives evidence as a witness can claim the privilege in relation to questions directed to the facts in issue. [40] The interim proposal treated all party witnesses in the same way, whether the accused in a criminal trial or a plaintiff/defendant in a civil trial, on the basis that, where a party chooses to give evidence, he or she should have to give complete evidence about matters directly in issue. The accused and civil parties are not, however, in the same position. If the accused has to answer questions about facts relevant to the charges, the answers will not generally expose the accused to the risk of further criminal proceedings. The contrary applies to parties giving evidence in civil proceedings - their answers could be used in subsequent criminal proceedings. The clause should be limited to the accused.

(b) Witnesses called by the accused. One commentator [41] argued that the proposal should be qualified in the case of witnesses called by the accused in a criminal trial. It was suggested that such a witness should not have the proposed option but, if the witness objected to answering on the grounds of the privilege, the court should decide whether to grant the certificate or not. While this addresses the concern to minimise wrongful convictions, it may be doubted whether it would be useful in practice. Privilege or not, is that person going to admit, for example, to having committed the crime? On balance, what is more important is that the accused be able to adduce hearsay evidence of what the person said than that the accused be able to compel such person to give evidence. It should be emphasised that, in most jurisdictions at present, if the accused calls a witness and the witness claims a privilege, there is nothing at all that the accused can do. The Commission's proposal enables the accused to take another step and that is to have the witness invited to accept a certificate and to volunteer the evidence with that protection. Those on the fringe of a crime may assist. Another concern expressed was that the suggestion draws a distinction between the prosecution and defence in favour of the defence and, on-the face of it, could affect the balance of the criminal trial. Taking these matters into account, the qualification is not recommended.

Judge and juror

218. Interim Report proposals.[42] It was recommended that evidence of the reasons for a decision made by a person acting as a judge, arbitrator or juror in a legal or administrative proceeding or of the deliberations of a person so acting in relation to such a decision, may not be given by that person. An exception was made for matters arising under Part III of the Crimes Act 1914 (Cth) which creates offences in respect of conduct adversely affecting the trial system.

219. Response and recommendations. The proposals received general acceptance. Important issues however, have arisen as a result of further consideration of the draft legislation, deliberation in the Contempt Reference and recent debate in the light of a number of juror revelations during 1985 and 1986. In the context of evidence law, two principal issues have arisen in relation to jury verdicts and deliberations: what evidence, if any, should be admissible on an appeal where the jury verdict is challenged on the ground of juror misconduct and what evidence should be admissible on the trial of a charge relating to juror misconduct.

(a) Evidence of juror deliberations on appeal. A threshold question arises - is the Commission, within its terms of reference, able to deal with the admissibility, on appeal, of evidence of the reasons of a juror for coming to his or her decision or the deliberations of such a person in relation to jury proceedings? Two views may be put. Firstly, it may be said that it is a policy question on the admissibility of evidence whether such material should be generally available in appellate proceedings. Alternatively, it may be contended that this is a matter of substantive law, one which involves the permissible grounds or scope of appeal. In these circumstances the issues would be outside the Terms of Reference on Evidence. Either approach can be used.

In most, but not all, judgments in this area, the debate has been about the admissibility of a juror's evidence, not whether the allegation of misconduct is a proper ground of appeal. [43] The tail, however, wags the dog.

It may seem odd that, on the one hand, the law should lay down certain fundamental ground rules as to the operation of the jury system and recognise that deviations from these rules may invalidate a jury's verdict, and that, on the other hand, it should deny to litigants and judges alike sure means of discovering whether serious irregularities have occurred. [44]

To approach the question as one of evidence law, however, the Commission would have to accept the existing grounds of appeal which relate to juror misconduct and draft rules of evidence for such appeals. The grounds of appeal, however, are unclear. [45] The issue of permissible ground of appeal would have to be solved before the Commission could proceed. This task is outside the terms of reference. Logically, it should procede the formulation of evidentiary rules because defining the grounds of appeal will define the issues and determine what classes of evidence will be relevant. The Commission recommends that the admissibility of such evidence on appeal be placed outside the operation of the Bill.

(b) Evidence of juror deliberations in trials of matters. Related ]issues arise in determining whether evidence should be able to be adduced, in proceedings other than appeals, by jurors about juror misconduct in prior proceedings. Examples of trials where such issues might arise may be found in Part III of the Crimes Act 1914 (Cth). It was to this that the interim proposals referred. Other possible examples are trials for the common law offences of contempt, attempting to pervert the course of justice and embracery. In addition, a number of crimes may take place in the jury room and prosecution of them might require evidence to be given by jurors. This has been permitted in a number of old cases but the law is unclear on the admissibility of such evidence. The issue is whether the interim proposals should be widened to cover such cases.

In the Interim Report, [46] the justifications advanced for preventing the disclosure in evidence of the reasons for decisions of juries, (and judges and arbitrators) were:

it is desirable to promote finality in decisions;

jurors, in particular, should be prevented from being exposed to pressure to which they might otherwise be subject with a view to explaining the reasons which actuated them individually in arriving at their verdict; and

it is necessary to maintain the independence and authority of the judge and confidence in the decisions of judges, juries and arbitrators.

The policy concerns relate to the proper functioning of the jury system. It is possible to identify offences which concern the proper functioning of the jury system. It would not threaten the secrecy of the jury room or the finality of verdicts but rather protect the jury system to permit evidence to be given by jurors on the trial of such offences. Outside such offences, however, the same policy arguments require an embargo on evidence of jury deliberations. It would be appropriate to exempt from the proscription of evidence from jurors, evidence in relation to prosecutions for offences within the jury room and offences calculated to interfere with the administration of justice, being attempts to pervert the course of justice and embracery. Reference to Part III of the Crimes Act 1914 (Cth) (as in the interim proposal) however, is too wide. It deals with a number of diverse offences relating to the administration of justice. These vary from offences of fabricating evidence and practising any fraud or deceit with intent to interfere with testimony to inserting in the Gazette or any newspaper advertisements purporting to be published under the authority of the Federal Court and even offences of escaping from custody. This goes further than is appropriate. It is necessary to particularise the statutory offences. It is recommended that this be done. [47] Finally, the exception should include proceedings for contempt of court. The above discussion has focussed on jurors. Similar concerns warrant the application of the same approach to judicial and like officers. It is recommended that like exceptions apply to the evidence of judges and arbitrators. Concern was expressed about the proposals operating to prevent reference to the published reasons of judges and arbitrators. To remove any doubts, the legislation should state that it does not apply to published reasons.

Matters of state

220. Interim Report proposal.[48] It was proposed that the court should be under a duty to prevent the giving of evidence about matters of state if the public interest in preserving secrecy and confidentiality in relation to the evidence outweighed the public interest in admitting the evidence. This power would be capable of preventing the giving of information relating to, for example, the security and safety of the realm, international relations, the prevention and detection of crime, the efficient running of government and the identity of informers. Specific guidelines were prescribed for the exercise of this discretion.

221. Response and recommendation. The proposal was generally accepted. It has been suggested, however, that it should be made clear that the definition of matters of state covers evidence that relates not only to the prevention and detection of criminal activity but also breaches of the Trade Practices Act 1974 (Cth) and like legislation (for example, breaches of the Customs Act 1901 (Cth) which give rise to claims for civil penalties). The definition has been amended to include reference to the prevention or detection of contraventions of the law. Subject to this change, it is recommended that the interim proposal be implemented. [49]

Settlement negotiations

222. Interim Report proposal.[50] It was proposed that the court should be under an obligation to prevent the giving of evidence of communications made in an attempt to settle a civil dispute (including where a party's agent or a mediator is involved). This should not extend to communications constituting an offence, communications affecting rights and liabilities and communications relating to issues that have been settled. Similarly, the protection should not be available where all parties to the dispute consent or where reliance on it would enable a party to deceive a court about the course of an attempt to settle the dispute. A party who discloses the whole or pan of the negotiations in another action should also lose its protection if the other party to the negotiation consents.

223. Responses and recommendations. The proposals were accepted in principle and should be implemented subject to the following modifications. [51]

(a) Limit to justiciable disputes. Literally, the provision in the interim legislation [52] applied to any dispute whether it was likely to result in court proceedings or not (for example, a family argument about pushing toothpaste out from the middle of the tube). In practice this may not matter but the clause could be tightened to confine it to disputes in matters that are justiciable by the courts in civil proceedings or administrative tribunals. The proposal should be limited in that way.

(b) Matters triable in criminal proceedings. The proposal could apply to disputes that relate to matters triable in criminal proceedings. It had been thought that by using the term 'dispute' it would not be interpreted in this way. Whether this view was right or not, the issue has been raised that there are matters that can be tried in both civil and criminal proceedings and thus even if the term 'dispute' were interpreted as expected, it could apply to negotiations of criminal matters. Several options were considered.

(i) One option would be to provide that the negotiation must be for the settlement of a dispute in which there were civil proceedings or in respect of which civil proceedings were reasonably anticipated. This option, however, is too limiting and inconsistent with the rationale of encouraging settlement.

(ii) An alternative would be to provide that the rule of exclusion does not operate in respect of settlement negotiation of a dispute in respect of which criminal proceedings were pending or reasonably anticipated. This too would go too far in that it would deny the privilege to things said where there was the possibility of criminal proceedings. It would not, for example, be available in most personal injury dispute negotiations.

(iii) The underlying policy concern is to encourage settlement negotiation between citizens who are locked in a dispute. What needs to be excluded from the protection of the privilege is the negotiation in respect of criminal proceedings which are current, pending or reasonably anticipated.

It is recommended that the third option be adopted.

(c) Communications in furtherance of crime or fraud. The interim proposals did not address the topic of communications in furtherance of crime, fraud and other unlawful activities. An exception similar to that for client legal privilege should be included.

Parliamentary privileges

224. Reservation of existing law. The Commission has not addressed the operation of parliamentary privileges as they affect the presentation and admission of evidence. The whole topic of parliamentary privilege has been and is under active consideration by the Commonwealth Parliament. In all the circumstances, the appropriate course is to preserve existing law for the time being. [53]

Ancillary provisions

225. Production for inspection and advice.To remove any argument a provision should be included in the legislation applying to all the above proposals empowering the court to inspect any document in respect of which a claim to protection arises under them. A general provision should also be included obliging the court to satisfy itself that a witness or party, who may have grounds for relying on one of the above proposals, is aware of that proposal.

Footnotes

[1] ALRC 26 vol I, para 847ff.

[2] Privilege against the production of title deeds; privilege against producing documents relating solely to one's own case; witness not compellable to give evidence to demonstrate illegitimacy; privilege against answering questions tending to prove adultery.

[3] The exception being communication between spouses (see above para 77-8) and the ancient privileges that were abolished.

[4] Changing the order avoided duplication and enabled more definition clauses to be tied to specific proposals.

[5] ALRC 26, vol I, para 877ff.

[6] [1985] HCA 60; (1985) 59 ALJR 749

[7] See below para 220-1: the privilege protecting matters of state.

[8] Interim cl 106(2).

[9] cf Jones v Godrich (1845) 4 Moo PCC 16, 46.

[10] Mr M Colbran, Barrister, Melbourne, Submission 111 (13 October 1986) 2-4; cf R v Barton [1972] 2 All ER 1192.

[11] This result could also have occurred where one lawyer acted for both accused.

[12] eg The Hon Justice CW Pincus, Federal Court of Australia, Submission 1 (November 1985) 17; NSW Bar Association, Submission112 (21 October 1986) 8-9.

[13] eg secret trusts: Russell v Jackson [1851] EngR 955; (1851) 9 Hare 387.

[14] Interim cl 106 did not remove the privilege. See also definitions in interim cl 102.

[15] See interim cl 102.

[16] Interim cl 106(10).

[17] See eg Varawa v Howard Smith & Co Ltd [1910] HCA 11; (1910) 10 CLR 382, 385.

[18] [1985] HCA 60; (1985) 59 ALJR 749.

[19] McNaughton 1961, vol 8 para 2298.

[20] See Clark v United States, [1933] USSC 52; 289 US 1, 15 (1933) (Cardozo J).

[21] eg in pre-trial discovery, on search warrant.

[22] eg third party communications that do not satisfy the 'sole purpose' test but satisfy the 'dominant purpose' test: above, para 195.

[23] cl 107(6), (7).

[24] Some drafting changes have been made. The interim proposal cl 106(6)(a) referred to a disclosure 'not being a disclosure made as mentioned in s 105'. This was confusing because the only disclosure referred to in cl 105 was the disclosure that would be made in court if the privilege did not apply (Attorney-General's Department (Cth), Courts and Administrative Law Branch, Submission 74 (4 April 1986) 7). What is really being referred to is the confidential communication and the contents of the documents referred to in s 105. The clause has been amended (see now cl 107(6)(a)). Also, interim cl 105, in referring to the client and lawyer, could have been interpreted to require the relationship to exist at the time the issue arose in court. This will often not be the case. The draft has been amended to make the privilege available where the relationship has ceased to exist.

[25] ALRC 26, vol I, para 903-56.

[26] With the exception of the Australian Federal Police (Submission 60 (5 March 1986) 5) who were prepared to concede one for priest penitent communications.

[27] Client legal privilege is also available in all jurisdictions.

[28] This clause mirrors that in the client legal privilege proposal.

[29] These qualifications were suggested originally for client legal privilege.

[30] Two matters of detail should be mentioned:

(a) One commentator (Attorney-General's Department (Cth) Courts and Administrative Law Branch, Submission 74 (4 April 1986) 6) raised the question whether it was necessary to limit the definition of confidential communication to ones made under an obligation not to disclose the contents 'to a party'. Having regard to the policy objectives, that limit is not appropriate and it has been removed.

(b) The definition of 'interested person' should include 'on whose behalf.

[31] The President.

[32] Interim cl 103.

[33] ALRC 26, vol II, App C, para 203.

[34] s 116 prohibits a law for establishing any religion.

[35] ALRC 26, vol I, para 852ff.

[36] They differ - see ALRC 26, vol II, App C, para 218ff.

[37] The evidence might also, in a few cases, be relevant to foreign proceedings that could be brought against a witness. The certificate could not prevent the evidence being used in those proceedings. The witness would need to bear this in mind.

[38] In the Costigan Report the point is made about the reluctance of witnesses to speak honestly notwithstanding the protection that what they said could not be used in evidence against them, Costigan report vol 2, para 1.009, 4.001.

[39] Interim cl 104(5).

[40] McNaughton 1961, para 2257(b).

[41] Mr P Waight, Submission 32 (3 December 1985) 6.

[42] ALRC 26, vol I, para 873ff.

[43] eg Vaise v Delaval [1785] EngR 12; (1785) 99 ER 944; Foster v Hawden [1793] EngR 898; 83 ER 520; R v Brown [1907] NSWStRp 27; (1907) 7 SR (NSW) 290; Brenan v Russell (1862) 1 SCR (NSW) 300; See Clamp v Lyne (1895) 11 WN (NSW) 108, 109; See also Straker v Graham (1839) 4 Mr W 721; Re Matthews and Ford [1973] VicRp 18; [1973] VR 199; Ellis v Deheer [1922) 2 KB 113, 121.

[44] Campbell 1985, 154.

[45] Evidence from jurors to prove acts of misconduct by them in the jury room, to show that they had decided in disregard of the evidence, or on the basis of evidence not received in open court or inadmissible, to say they meant something different from what was given in their verdict (Boston v WS Bagshaw & Sons [1966] 1 WLR 1135, 1337.), to show that a juror subscribed to the verdict only because he or she believed that the jury would be kept together until a unanimous verdict was reached or to show that the jurors were under some misunderstanding, has been rejected. Evidence has been received, on the other hand, to show that an associate made an error in asking for a general/specific verdict and that a juror was incompetent to act, as, for instance, because he or she did not understand the language in which the trial was conducted: see Campbell, 147.

[46] ALRC 26, vol I, para 873.

[47] Offences under the Crimes Act 1914 (Cth) s 36A, s 37, s 38, s 39, s 42, s 43, s 44 and attempting or conspiring to commit such offences.

[48] ALRC 26, vol I, para 863ff.

[49] In the inclusive list of matters to be considered, the Interim Report included 'whether the evidence has already been published'. This has been changed to refer to the 'substance of the evidence'.

[50] ALRC 26, vol I, para 890.

[51] eg DPP (Cth) Submission 70 (4 April 1986) 3; Trade Practices Commission, Corporate Planning and Services, Submission 56 (19 January 1986) 19-20.

[52] Interim cl 111.

[53] cl 16.

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17. Commentary - aspects of proof

Introduction

Judicial notice

Documents

Facilitation of proof

Standard of proof

Corroboration

Footnotes

Introduction

226. Scope of chapter. This chapter deals with several topics that relate to various aspects of proof. The first, judicial notice, relates to those matters for which formal evidence should not be required. The second, documents, is concerned with the ways in which the contents of documents may be proved. The third, facilitation of proof, is concerned with presumptions to aid in the proof of the authenticity of documents and other evidence. The chapter concludes with the topics of standard of proof and corroboration.

Judicial notice

227. Interim Report proposal.[1] It was proposed that formal proof should not be required of:

'matters of law', that is, the content and operation of the common law, Australian statutes and Australian delegated legislation published or notified in a Government Gazette; [2] and

knowledge that is not reasonably open to dispute and is common knowledge in the locality where the proceeding is being held or is knowledge which is capable of verification by documentary sources the authority of which cannot reasonably be questioned. [3]

In each situation, it was proposed that judges should be able to inform themselves about these matters as they see fit. The interim proposal required the judge to inform the parties if there was a risk that making his or her own enquiries to acquire knowledge might cause unfair prejudice. Special provision was made to preserve the effect of Crown certificates in matters of international affairs.

228. Responses and recommendations. The proposals received general support. They should be implemented.

Documents

229. Interim Report proposal.[4] The Interim Report proposed an exclusionary rule with exceptions to control the admission of evidence of the contents of documents. It recommended that the existing law [5] should be replaced by a rule of exclusion rendering oral evidence and copies generally inadmissible as evidence of the contents of the original document. There were proposed, however, a number of exceptions [6] covering all modern information storing media, such as computer discs, tapes and microfilm.

(a) Duplicates. Evidence of the contents of the original document in the form of copies made by modern reproduction techniques should not be excluded whether the original document is in existence or not.

(b) Original unavailable. Where the original document is not available, oral or other secondary evidence should not be excluded. For the purposes of these provisions, 'unavailable document' meant a document that

could not be found after reasonable inquiry;
could not be obtained by any judicial procedure of the court;
was in the possession or under the control of another party;
was in the possession or under the control of another party at a time when that party knew, or might reasonably be supposed to know, that the document was relevant to the proceeding; or
was not closely related to the issues to be tried.

However, where the original had been destroyed in bad faith, secondary evidence would not be admissible.

(c) Commercial and government records. It was proposed that a more relaxed regime should apply in relation to proof of the contents of business and public records, including records of commercial organisations and government departments and instrumentalities. Copies of these documents should not require authentication by evidence that they are true copies, if evidence is given that the copies were made and kept in the ordinary course of business or purport to be copies of such records.

Safeguards were included in the proposals. It was proposed that existing procedures for the discovery of documents be updated to cover modern information storage media and that the courts be given the power to direct production of the document in question and the calling of relevant witnesses. In addition, it was proposed that, should the original document be in another country, the party wishing to tender a copy should have to give notice or seek the leave of the court.

230. Finally, it was proposed that the court be permitted to draw inferences of fact from the document tendered to prove the contents of the document in question - for example, that it is copy of the document in question. To reduce costs and save time, the proposal permitted evidence to be given by affidavit.

231. Responses and recommendations. The proposals received widespread support. Some commentators, however, found the draft legislation difficult to understand. [7] The point of concern was the interrelation of two clauses in the draft legislation. [8] The effect of these provisions was, firstly, to abolish the existing law as to the permitted methods of proving the contents of a document [9] and, secondly, to substitute a new rule of exclusion [10] to which exceptions were then provided. [11] It was considered that in practice the existing rules are seen as rules of admissibility rather than as rules prescribing modes of proof and that it would be easier to understand the proposals if they were expressed as rules of admissibility. As this has not proved to be so, it is proposed to recast the legislation in the form of rules prescribing the ways in which the contents of documents may be proved. Otherwise, it is recommended that the interim proposals outlined above be implemented.

232. Recommendations - terminology. A point of terminology should be mentioned. We are accustomed to think in terms of 'original documents' and copy documents. At times, however, the document, the contents of which must be proved, can be a copy document. If the term 'original' was used in the legislation, a definition would be required of 'original' to include a copy document where it was the document the contents of which were in question. To avoid this, the simple device was used (and is continued in the Bill) of relating the proposals to the proof of the contents of the 'document in question'.

Facilitation of proof

233. Interim Report proposal.[12] it was proposed that a number of specific provisions should be enacted to facilitate proof of a variety of matters. These should be in addition to other methods of proof such as those provided by the State and Territorial Law and Records Recognition Act 1901 (Cth). The following proposals were advanced:

(a) Authentication and identification. Where the relevance of evidence depends upon the court making a finding as to the authenticity of that evidence, the court should be able to admit the evidence if satisfied that it would be open to a reasonable jury to find that the evidence is what its proponent claims it to be. In determining the authenticity of a document or thing, the court should be able to examine it and draw inferences from it.

(b) Evidence produced by machines. Where it is reasonably open to find that a device or process (for example, cheque sorting equipment) is of a kind that, properly used, does what is claimed for it (for example, on the basis of evidence of general reliability and trustworthiness), it should be presumed, unless the contrary were proved, that the particular device did what the party claimed it did on the occasion in question. Such a finding should operate both at the stage of admission of evidence and at the conclusion of the proceedings.

(c) Business records. In the case of documents reproducing or derived from information from a device used for the purposes of a business, it was proposed that the working accuracy of the device on the occasion in question should be presumed unless the contrary were proved. It was proposed that this presumption not be available in relation to documents produced for the purposes of a legal or administrative proceeding.

(d) Other provisions. The following presumptions were proposed:

the authenticity of Government Gazettes and documents published by the Government Printers;
regularity in respect of acts notified in such documents;
the authenticity and validity of official seals and signatures;
the authenticity of documents purporting to be copies of public documents;
the authenticity, and due execution or attestation, of documents more than 20 years old produced from proper custody;
that the ownership or origins of objects and things are as stated in tags and labels attached to objects or things;
the due receipt and transmission of telecommunications;
the receipt of mail within four working days after posting; and
that statistics published by the Australian Bureau of Statistics or the Australian Statistician were derived by the Bureau from information obtained by it.

It was proposed to allow evidence in affidavit form to prove facts required to bring these provisions into operation. Proposals were also included to protect parties against whom evidence to which the presumptions relate is led, in particular, the power to request the production of documents and the calling of witnesses. It was proposed that evidence of attesting witnesses to documents (other than wills) should not be required to authenticate the documents.

234. Response and recommendations. Several specific matters were raised.

(a) Evidence produced by machines. The interim proposal created a presumption of accuracy in respect of devices and processes used. It did not apply in respect of documents produced by such devices and processes for the purposes of legal or administrative proceedings. The question was raised whether this would be construed as meaning sole purpose, dominant purpose or a purpose. [13] 'Sole purpose' and 'dominant purpose' would enable the presumption of accuracy to operate in circumstances where a significant reason for producing the document was the use of it in legal proceedings. 'A purpose' would prevent the presumption operating in that situation. Its use is recommended.

(b) Seals and signatures. A presumption of regularity was created for official seals and signatures. It included the seals of bodies corporate but omitted to cover such bodies created under Royal Charter or under the laws of the Commonwealth. This has been rectified.

(c) Post. The proposal created a presumption of delivery of an article within four days of it being sent by post. A query was raised about the meaning of 'sent' in the relevant clauses. [14] It means posted and the draft has been changed.

(d) Telecommunications. It was proposed that there be a presumption of the receipt of a telecommunication by the person to whom it was addressed. There was no presumption, however, about the time of receipt. Receipt within 24 hours of the telecommunication being sent should be presumed.

Otherwise, the proposals were supported. Subject to the above changes, it is recommended that the interim proposals be implemented.

235. Relationship with other laws. A general issue raised was the relationship of the provisions to other Commonwealth, State and Territory statutes and the common law. [15] To what extent can they, and will they, override such statutes and the common law? The proposals cover areas covered by Commonwealth, State and Territory Acts and Ordinances dealing with proofs of official seals, signatures and the like. They rationalise them and could replace them. They should not, however, be exhaustive.

(a) Commonwealth statutes. It is necessary to preserve the facilitation of proof provisions in the State and Territorial Laws and Records Recognition Act 1901 (Cth). They apply in State courts exercising State jurisdiction and deal, for example, with the proof of seals and signatures of State officials. The Evidence Act 1905 (Cth) has similar provisions that apply in State courts and other judicial proceedings and deal, for example with the proof of seals and signatures of Commonwealth officials. It is necessary and desirable that they be retained. [16]

(b) Presumptions. The proposals raise various presumptions which will facilitate proof of facts. They are not exhaustive. In particular, they do not deal with the common law and statutory presumptions of fact and law, for example, continuance, death, legitimacy and marriage. Many presumptions are properly to be regarded as matters of substantive law and outside the Terms of Reference. Others cannot be dealt with without dealing with those presumptions raised by the substantive law. [17] It is therefore not possible to deal exhaustively with the common law and all statutory presumptions.

Thus the provisions cannot be treated as an exhaustive statement of the law. The proposals could override State or Territory statutes in their application in Federal and Territory courts. They cannot replace the common law. In all the circumstances the simplest and most practical course is to provide, in effect, that these proposals do not override Commonwealth, State and Territory laws. This should not create any practical difficulties.

Standard of proof

236. Interim Report proposal.[18] The Interim Report dealt the standard of proof to be satisfied in several situations.

(a) Civil trials. For civil trials, it was proposed that the standard of proof for all parties should be satisfaction on the balance of probabilities. In determining whether the court is so satisfied, it should be required to have regard to the nature of the cause of action or subject-matter.

(b) Criminal trials. In criminal trials, the standard of proof for the prosecution should be satisfaction beyond reasonable doubt. For the defence in criminal trials, the standard should be the civil standard.

(c) Preliminary facts. For both civil and criminal trials, where the admissibility of evidence depends upon the proof of facts, the standard of proof of those facts should, unless special provision is elsewhere made, be the civil standard having regard to the importance of the evidence sought to be admitted.

237. Responses and recommendations. The substance of the proposals found general acceptance. [19] Difficulties, however, were experienced with the legislation. The drafting was spare and resulted in misunderstanding of the proposals. The legislation needs to be and has been recast to reflect more clearly the division into the above three areas. It is recommended that it be implemented in that form.

Corroboration

238. Interim Report proposal.[20] It was proposed that the existing requirements of law and practice requiring corroboration should be abolished except in relation to perjury and as specifically required by statute. Experience has shown, however, that certain categories of evidence can be unreliable or mis-estimated. These include hearsay, identification evidence, evidence of the young or ill, 'verbals', evidence of persons involved in or connected with the crime the subject of the trial, evidence of victims of sexual crimes and evidence in claims against deceased estates. It was proposed, therefore, that, where evidence came within one of these categories, there should be an obligation to give a warning about any dangers associated with the evidence, if a party so requests, unless the judge is satisfied that there is good reason not to do so.

239. Responses and recommendations. The proposals were generally supported and should be implemented. It should be noted that the proposal lists identification evidence as one class of evidence that may be unreliable or liable to misestimation. There are thus two sets of proposals dealing with eyewitness identification evidence. [21] This proposal imposes a general residual obligation to warn the jury in appropriate cases. The other specific proposals dealing with identification evidence spell out specific matters that must be addressed in warning the jury and impose additional obligations.

Footnotes

[1] ALRC 26 vol I, para 969ff.

[2] As to foreign law, the other proposal is available. In addition, under the proposals, expert witnesses could give evidence as at present.

[3] It was proposed that both the judge and the jury should take this kind of knowledge into account.

[4] ALRC 26, vol I, para 648ff.

[5] ALRC 26, vol II, App C, para 61ff.

[6] ALRC 26, vol I, para 651ff.

[7] eg Hon Justice CW Pincus, Federal Court of Australia, Submission 1 (November 1985) 10; Mr P Waight, Submission 32 (3December 1985) 3, Submission 62 (1986) 1.

[8] "Best evidence rule" abolished

48. It is not necessary to tender a document in order to prove its contents.

The contents of documents

49. (1) Oral evidence is not admissible to prove the contents of a document.

(2) A document is not admissible to prove the contents or some other document.

[9] Interim cl 48.

[10] Interim cl 49.

[11] Interim cl 50-4.

[12] ALRC 26, vol I, para 979ff.

[13] Law Society of the ACT, Submission 84 (19 May l986) 2.

[14] Interim cl 127(1) - 'the postal article sent by pre-paid post'; Law Society of the ACT, Submission 84 (19 May 1986) 2.

[15] eg Hon Justice CW Pincus, Federal Court of Australia, Submission 1 (November 1985) 1-2.

[16] See Evidence (Consequential Amendments) Bill 1987 in App A of this Report.

[17] ALRC 26, vol I, para 36, 44.

[18] ALRC 26, vol I, para 994ff.

[19] A consultant, Sir Richard Eggleston, questioned the formulation of the civil standard. The issues raised are discussed in ALRC 26, vol I, para 998. In the Commission's view the formulation in the interim report should not be changed.

[20] ALRC 26, vol I, para 1009ff.

[21] For other proposals see above para 191ff.

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18. Commentary - miscellaneous

Introduction

Ancillary provisions

Views, demonstrations and experiments

Voir dire

Dispensing with rules

Footnotes

Introduction

240. Scope of the chapter. Several topics are dealt with in this chapter. The first relates to proposals which are ancillary to the substantive proposals. The topic of views and demonstrations is then considered. The next topic considered is the voir dire - the proceeding in which, for example, the admissibility of evidence such as confessions is determined. The remaining topic is proposals for dispensing with rules.

Ancillary provisions

241. Interim Report proposals.[1] The final Part of the Interim legislation included a number of ancillary provisions.

(a) Inferences. A provision enabling inferences from an examination of documents and things to be drawn and used in determining questions about the application of the legislation in relation to such documents and things.

(b) Affidavits. A provision enabling affidavits to be used to prove facts relevant to the admissibility of documents and things. It enabled hearsay evidence to be given by a person who had a position of authority in relation to a document or thing, provided the source of the information relied upon was identified.

(c) Directions. A provision enabling the court, on the request of a party, to direct another party to call a witness or produce documents. This provision applied in relation to representations, evidence of convictions tendered as evidence of the facts on which they were based and the admissibility or proof of documents. It was included as a safeguard to protect parties against whom hearsay or documentary evidence or evidence of a conviction might be adduced.

(d) Leave criteria. There were provisions which listed matters relevant to the court's decisions whether to give leave or make other orders under the legislation.

(e) Discovery. There were provisions which extended discovery powers to modern recording media.

242. Responses and recommendations. These proposals attracted general support. in fact, the Commission was urged to go further than was proposed in the affidavit proposal and to allow evidence of police officers and other officials about particular official procedures to be presented by affidavit. [2] The interim proposal was within the Terms of Reference because it was a provision ancillary to the main provisions. To go further and spell out procedures not ancillary to the main proposals, however, would take the Commission outside its Terms of Reference. [3] For similar reasons the Commission's proposals about enabling the court to direct the production of documents is intended to play an ancillary role. To address generally the question of discovery [4] would be outside the Terms of Reference. It is recommended that the interim proposals be implemented.

Views, demonstrations and experiments

243. Interim Report proposal. The Interim Report proposed that views, demonstrations and experiments [5] should be treated as evidence. The court should be able to permit views, experiments and demonstrations, but only if the parties and their counsel have been given an opportunity to attend and the judge and jury (if any) will be present, The jury should not carry out experiments and the trial judge should so direct them.

244. Responses and recommendations. The Interim Report provision is silent as to whether the judge may act of his or her own volition in ordering a demonstration, experiment or inspection, Concern was expressed about this [6] and it would be desirable to make it clear that the judge's power is to be exercised only if a party so requests. Concern was also expressed about the possibility of the court drawing inferences from what was seen on the view and about the parties not knowing what those inferences were. [7] This situation can arise under the present law where the court is not permitted to use the view as evidence but in fact improperly does so. [8] Under existing law, however, the parties cannot address the court on the evidence of the view. The proposal will allow this and so the issue will be aired. This should provide sufficient protection to the parties. Otherwise the interim proposal was accepted and it is recommended that, subject to the above, it be implemented.

Voir dire

245. Interim Report proposal. The Interim Report proposed [9] that the determination of questions of fact upon which the admissibility of evidence, or the competence or compellability of witnesses, depends should be made by the trial judge. This should be so even where the fact is also a fact in issue.

(a) Presence of jury. It was proposed that it should be a matter for the trial judge whether the jury should be present while such questions are determined but, in general, the jury should be excluded where questions arise as to the admissibility of evidence of admissions or of evidence allegedly obtained illegally or improperly.

(b) Admissibility of voir dire evidence in the trial. It was proposed that if the jury is present during the voir dire, evidence adduced in the voir dire should be able to be used in the trial proper, subject to the exclusionary rules, without the need to repeat it. If the jury was not present, evidence about evidence given on the voir dire should not be able to be given unless it is inconsistent with the witness' later evidence.

(c) Application of rules of admissibility. It was proposed that the rules of admissibility should apply to bearings as to the admissibility of evidence (although in civil cases there should be the power to dispense with the rules).

(d) Questions as to the truth of admissions. In a criminal trial, the prosecution, in a voir dire concerning the question whether an admission was made in circumstances likely to affect its truth adversely, would have been able, under the interim proposal, to ask an accused giving evidence whether the admission is true.

(e) Unsworn evidence under the interim proposals. The accused retained the right to give unsworn evidence in a voir dire and would have been able to give unsworn evidence in the hearing proper notwithstanding that he or she gave sworn evidence on the voir dire.

246. Responses and recommendations. The interim proposals were generally accepted. A query was raised, however, in relation to the proposal [10] which referred to the rules of admissibility applying in the voir dire[11] as if the preliminary facts in question in the voir dire were facts in issue. It was questioned whether the clause necessitated references to the rules of admissibility elsewhere in the legislation on the grounds that it might be argued that they did not apply where there is no such reference. [12] The provision should be and has been redrafted to avoid this argument. [13] Critics of the unsworn statement opposed the proposals about unsworn evidence in relation to the voir dire. The Commission supports the retention of the right of the accused to give unsworn evidence and the arguments that led to this view support the approach to unsworn evidence in relation to the voir dire. [14] Subject to the above change, it is recommended that the interim proposals be implemented.

Dispensing with rules

247. Interim Report proposal.[15] Proposals were advanced to enable certain rules to be waived or dispensed with - those dealing with the questioning of witnesses and the rules of admissibility other than the relevance rules, privileges and the residuary discretions in criminal proceedings. It was proposed that, if the parties consent, the court should be able to dispense with the application of these rules of evidence, but that in criminal proceedings, the court should be satisfied that an unrepresented defendant understands the consequences of giving consent. In civil proceedings, it was proposed that the court be able to order that the above rules not apply to evidence if the matter to which it relates is not genuinely in dispute or undue expense or delay would be caused if they were applied.

248. Responses and recommendations. While there was general support for the proposals, a query was raised as to the effect of dispensing with the application of the rules mentioned above. Would it mean that there are no rules, or that s 79 of the Judiciary Act 1903 (Cth) picking up State or Territory laws, would apply? [16] In the Commission's view, this would not follow. The clause does no more than permit the court to dispense with the application of the provisions. The legislative provisions will remain in existence. In those circumstances it can be said that there is a law of the Commonwealth providing otherwise and accordingly Judiciary Act 1903 (Cth) s 79 will not apply to require the court to apply State or Territory laws. More particularly, so far as the rules of admissibility are concerned, there is no power given to dispense with the rules relating to relevance. They will apply and there will therefore always be a Commonwealth law stating that the evidence (if relevant) is admissible and evidence that is not relevant is inadmissible. This would prevent the Judiciary Act provision applying so far as admissibility is concerned. It is recommended that the interim proposals be implemented.

Footnotes

[1] ALRC 26 vol I, para 1024ff.

[2] Department of Special Minister of State (Cth), Submission 61 (18 December 1985) 1.

[3] See ALRC 26, vol I, ch 2.

[4] cf Aboriginal Legal Service Ltd (NSW) Solicitors, Submission 30 (28 November 1985) 2, arguing for full pre-trial discovery from the prosecution.

[5] ALRC 26, vol I, para 1027ff.

[6] Law Society of the ACT, Submission 84 (19 May 1986) 3-4.

[7] New South Wales Bar Association, Submission 112 (21 October 1986) 10-1

[8] cf Unsted v Unsted [1947] NSWStRp 44; (1947) 47 SR (NSW) 495.

[9] ALRC 26, vol I, para 1032.

[10] Interim cl 140(5). As to questions as to the truth of admissions see para 160(a).

[11] Except the provision removing protection from the accused of the privilege against self-incrimination in relation to issues relevant to the guilt or otherwise of the accused.

[12] Attorney-General's Department (Cth), Courts and Administrative Law Branch, Submission 79 (28 April 1986) 2.

[13] See Evidence Hill 1987 cl 146(b).

[14] ALRC 26, vol I, para 1046; above para 91ff.

[15] ALRC 26, vol I, para 1025.

[16] Attorney-General's Department (Cth) Submission 74 (4 April 1986) 11.

[Return to Top]

Appendix A: Draft legislation

Evidence Bill 1987

Evidence (consequential amendments) Bill 1987

Explanatory Memorandum for Evidence Bill 1987 and Evidence (Consequential Amendments) Bill 1987

Evidence Regulations

Dissents

Suggested amendments to court rules

Evidence Bill 1987

TABLE OF PROVISIONS

Clause
PART I - PRELIMINARY

1.	Short title
2.	Commencement
3.	Interpretation
4.	References to businesses
5.	References to examination in chief, &c.
6.	References to civil penalties
7.	Unavailability of persons
8.	Unavailability of documents
9.	Representations in documents
10.	Witnesses
PART II - APPLICATION OF ACT
11.	Courts and proceedings to which Act applies
12.	Territories
13.	Act to bind Crown
14.	Operation of other Acts, &c.
15.	Application of certain provisions
16.	Parliamentary privilege preserved
17.	General powers of the court
PART III - WITNESSES
*Division 1 - Competence and compellability of witnesses*
18.	Competence and compellability
19.	Competence: lack of capacity
20.	Compellability: Sovereign, &c.
21.	Competence and compellability: Judges and jurors
22.	Competence and compellability: defendant, &c., in criminal proceedings
23.	Comment on failure to give evidence
24.	Compellability of spouses, &c., in criminal proceedings
25.	Compellability of spouses in civil proceedings
*Division 2 - Sworn and unsworn evidence*
26.	Evidence of witnesses to be on oath or affirmation
27.	Unsworn evidence in criminal proceedings
28.	Comment on unsworn evidence
29.	Court to advise witnesses
*Division 3 - Manner of giving evidence*
Subdivision A - General rules
30.	Court to control questioning of witnesses
31.	Parties may question witnesses
32.	Examination in chief to be completed before other questioning
33.	Manner and form of questioning witnesses
34.	Interpreters
35.	Deaf and mute witnesses
36.	Attempts to revive memory in court
37.	Attempts to revive memory out of court
38.	Direction not to extend to certain documents
39.	Effect of calling for production of documents
*Subdivision B - Examination in chief and re-examination*
40.	Leading questions
41.	Unfavourable, &c., witnesses
42.	Limits on re-examination
Subdivision C - Cross-examination
43.	Witness called in error
44.	Improper questions
45.	Leading questions
46.	Prior inconsistent statements of witness
47.	Previous representations of other persons
48.	Production of documents
49.	Certain matters to be put to witness
PART IV - ADMISSION OF EVIDENCE: RELEVANCE RULE
50.	Relevant evidence
51.	Relevant evidence to be admissible
52.	Provisional relevance
53.	Inferences as to relevance
PART V - ADMISSION AND USE OF EVIDENCE:
EXCLUSIONARY RULES
*Division 1 - Hearsay evidence*
Subdivision A - The hearsay rule
54.	Exclusion of hearsay evidence
Subdivision B - "First-hand" hearsay
55.	Restriction to "first-hand" hearsay
56.	Exception: civil proceedings where maker not available
57.	Exception: civil proceedings where maker available
59.	Exception: criminal proceedings where maker not available
59.	Exception: criminal proceedings where maker available
60.	Notice to be given
Subdivision C - Other hearsay
61.	Exception: business records
62.	Exception: contents of tags, ]abets, &c.
63.	Exception: telecommunications
64.	Exception: reputation as to certain matters
65.	Exception: interlocutory proceedings
*Division 2 - Opinion evidence*
66.	Exclusion of opinion evidence
67.	Exception: lay opinions
68.	Exception: opinions based on specialised knowledge
69.	Ultimate issue and common knowledge rules abolished
*Division 3 - Admissions*
70.	Interpretation: sound recording
71.	Hearsay and opinion rules: exception for admissions
72.	Exclusion of admissions influenced by violence, &c.
73.	Criminal proceedings: reliability of admissions by defendants
74.	Criminal proceedings: recording of admissions by defendant
75.	Exclusion of records of oral questioning
76.	Admissions made with authority
77.	Proof of making of admission
78.	Evidence of silence
79.	Discretion to exclude admissions
*Division 4 - Evidence of judgments and convictions*
80.	Exclusion of evidence of judgments and convictions
81.	Exceptions
82.	Savings
*Division 5 - Evidence of conduct and character relevant to issues*
Subdivision A - Preliminary
83.	Interpretation
84.	Application
85.	Use of evidence for other purposes
Subdivision B - Tendency evidence
86.	Exclusion of tendency evidence
Subdivision C - Conduct evidence
87.	Exception: conduct (including of amused) to prove tendency
88.	Exclusion of evidence of conduct (including of accused) to prove improbability of co-incidence
89.	Further protections: prosecution evidence of conduct of accused
90.	Notice to be given
Subdivision D - Character evidence
91.	Exception; character of accused
92.	Exception: character of co-accuseds
93.	Cross-examination of accused by leave only
*Division 6 - Credibility*
94.	Exclusion of evidence relevant to credibility
95.	Exception: character of accuseds
96.	Exception: cross-examination as to credibility
97.	Further protections: cross-examination of accused
98.	Where unsworn evidence given
99.	Exception; rebutting denials by other evidence
100.	Exception: application of certain provisions to maker of representations
101.	Exception: re-establishing credibility
*Division 7 - Identification evidence*
102.	Application of Division
103.	Exclusion of identification evidence
104.	Exclusion of evidence or identification by pictures
105.	Directions to juries
*Division 8 - Privileges*
Subdivision A - Client legal privilege
106.	Privilege in respect of legal advice and litigation, &c.
107.	Loss of privilege in respect of legal advice and litigation, &c.
108.	Interpretation
Subdivision B - Other privileges
109.	Privilege in respect of confidential communications and records
110.	Privilege in respect of self-incrimination in other proceedings
Subdivision C - Evidence excluded in the public interest
111.	Exclusion of evidence of reasons for judicial, &c., decisions
112.	Exclusion of evidence of matters of state
113.	Exclusion of evidence of settlement negotiations
Subdivision D - General
114.	Court to inform of rights, &c.
115.	Court may inspect, &c., documents
116.	Certain evidence inadmissible
*Division 9 - Discretions to exclude evidence*
117.	General discretion to exclude
118.	Criminal proceedings: discretion to exclude prejudicial evidence
119.	Discretion to exclude improperly obtained evidence
PART VI - OTHER ASPECTS OF PROOF
*Division 1 - Judicial notice*
120.	Matters of law
121.	Matters of common knowledge, &c.
122.	Certain Crown certificates
*Division 2 - Documents*
123.	Interpretation
124.	"Best evidence" role abolished
125.	Proof of contents of documents
126.	Documents in foreign countries
*Division 3 - Facilitation of proof*
127.	Evidence produced by machines, processes, &c.
128.	Attestation of documents
129.	Gazelles, &c.
130.	Seals and signatures
131.	Public documents
132.	Documents produced from proper custody
133.	Labels, &c.
134.	Posts and telecommunications
135.	Official statistics
*Division 4 - Standard of proof*
136.	Civil proceedings standard of proof
137.	Criminal proceedings standards of proof
138.	Admissibility of evidence: standard of proof
*Division 5 - Corroboration*
139.	Corroboration requirements abolished
*Division 6 - Warnings*
140.	Unreliable evidence
PART VII - MISCELLANEOUS
141.	Inferences
142.	Proof of certain matters by affidavit, &c.
143.	Request to produce documents or call witnesses
144.	Views, &C.
145.	Views, &c.. to be evidence
146.	The voir dire
147.	Waiver of rules of evidence
148.	Leave, &c., may be liven on terms
149.	Additional powers on discovery and inspection
150.	Conferral of jurisdiction
151.	Regulations

SCHEDULE

A Bill for An Act relating to evidence in proceedings in Federal courts and in courts of the Territories

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

PART I - PRELIMINARY

Short title

1. This Act may be cited as the Evidence Act 1987.

Commencement

2. This Act shall come into operation on a day to be fixed by Proclamation.

Interpretation

3. In this Act, unless the contrary intention appears -

"admission" means a previous representation made by a person who is or becomes a party to a proceeding, being a representation that is adverse to the person's interest in the outcome of the proceeding;

"case", in relation to a party, means the facts in issue in respect of which the party bears the legal burden of proof;

"civil proceeding" means a proceeding in a court, other than a criminal proceeding;

"confidential communication" or "confidential record" means a communication made or a record prepared in such circumstances that, at the time when it was made or prepared-

(a) the person who made or prepared it; or

(b) the person to whom it was made or for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law;

"credibility rule" means subsection 94(1);

"criminal proceeding" means a prosecution in a court for an offence and includes a proceeding for the commitment of a person for trial for an offence;

"cross-examiner" means a party who is cross-examining a witness;

"document" includes -

(a) any thing on which there is writing;

(b) a map, plan, drawing or photograph; and

(c) a thing from which sounds or visual images are capable, with or without the aid of a device, of being reproduced, and also includes a part of a document as so defined and a copy, reproduction or duplicate of a document or of a part of a document;

"enactment" means an Act, an Act or Ordinance of a Territory other than the Northern Territory, an Imperial Act or an Act of a State that is continued in force in a Territory or regulations, by-laws or rules made under such an Act or Ordinance;

"evidence"includes unsworn evidence;

"hearsay rule"means subsection 54(1);

"identification evidence", in relation to a criminal proceeding, means evidence that is -

(a) an assertion by a person to the effect that a defendant was, or resembles a person who was, present at or near a place where -

(i) the offence for which the defendant is being prosecuted was committed; or

(ii) an act that is connected with that offence was done, at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the first-mentioned person saw, heard or otherwise noticed at that place and time; or

(b) a report (whether oral or in writing) of an assertion as mentioned in paragraph(a);

"investigating official"means a police officer or a person whose functions or duties include functions or duties in respect of the prevention or investigation of offences;

"Judge", in relation to a proceeding, means the Judge, Magistrate or other person before whom the proceeding is being held;

"leading question"means a question asked of a witness that -

(a) directly or indirectly suggests a particular answer to the question; or

(b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked;

"legal or administrative proceeding"means a proceeding (however described) -

(a) in a federal court or a court of a State or Territory or of a foreign country; or

(b) before a person or body (other than a court) authorised by law, including a law of a State or Territory or of a foreign country, or by consent of parties, to hear and receive evidence, and includes a proceeding in a coroner's court and a proceeding in a court-martial;

"legal practitioner"means a barrister or a solicitor;

"offence"includes an offence against or arising under a law of or in force in a State or Territory;

"official questioning"means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence;

"opinion rule"means subsection 66(1);

"person who is being prosecuted for a related offence"; in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted (being a prosecution that has not been completed or terminated) for -

(a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or

(b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted;

"police officer"means a member of the Australian Federal Police or of the police force of a State or Territory;

"previous representation"means a representation made otherwise than in the course of the giving of evidence in the proceeding in which evidence of the representation is sought to be adduced;

"prior consistent statement", in relation to a witness, means a previous representation that is consistent with evidence given by the witness;

"prior inconsistent statement", in relation to a witness, means a previous representation that is inconsistent with evidence given by the witness;

"probative value", in relation to evidence, means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue;

"public document"means a document that -

(a) forms part of the records of -

(i) the Crown in any of its capacities;

(ii) the government of a foreign country; or

(iii) a person or body holding office or exercising a power or function under or by virtue of the Constitution or of a law, whether of the Commonwealth, a State or a Territory or of a foreign country; or

(b) is being kept by or on behalf of the Crown, such a government or such a person or body,

and includes the records of the proceedings of a House of the Parliament, a Legislative Assembly of a Territory (including the Australian Capital Territory House of Assembly), a House of the Parliament of a State or the legislature of a foreign country;

"representation"includes an express or implied representation (whether oral or in writing) and a representation to be inferred from conduct;

"sworn evidence"means evidence given by a person who, before he or she gave it, had sworn an oath or made an affirmation in accordance with this Act;

"telecommunications installation"and "telecommunications service" have the meanings that they respectively have under the Telecommunications Act 1975;

"tendency rule"means section 86;

"unsworn evidence"means evidence that is not sworn evidence.

References to businesses

4. (1) Unless the contrary intention appears, a reference in this Act to a business includes a reference to -

(a) a profession, calling, occupation, trade or undertaking;

(b) an activity engaged in or carried on by -

(i) the Crown in any of its capacities; or

(ii) the government of a foreign country;

(c) an activity engaged in or carried on by a person or body holding office or exercising power under or by virtue of the Constitution or of a law, whether of the Commonwealth, a State or a Territory or of a foreign country, being an activity engaged in or carried on the performance of the duties of the office or in the exercise of the power; and

(d) the proceedings of a House of the Parliament, a Legislative Assembly of a Territory (including the Australian Capital Territory House of Assembly), a House of the Parliament of a State or the legislature of a foreign country.

(2) Unless the contrary intention appears, a reference in this Act to business also includes a reference to -

(a) a business that is not engaged in or carried on for profit; and

(b) a business engaged in or carried on outside Australia.

References to examination in chief, &c.

5. (1) Unless the contrary intention appears, a reference in this Act to -

(a) examination of a witness in chief is a reference to the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re-examination;

(b) cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence;

(c) re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, being questioning conducted after the cross-examination of the witness by some other party,

and "examine in chief", "cross-examine"and "re-examine" have corresponding meanings.

(2) Where a party has recalled a witness who has already given evidence, a reference in this Act to re-examination of a witness does not include a reference to questioning of the witness by that party before the witness is questioned by some other party.

References to civil penalties

6. For the purposes of this Act, a person shall be taken to be liable to a civil penalty if, in a legal or administrative proceeding (not being a criminal proceeding), the person would be liable to a penalty arising under a law of or in force in the Commonwealth, a State, a Territory or a foreign country.

Unavailability of persons

7. (1) For the purposes of this Act, a person shall be taken not to be available to give evidence about a fact if -

(a) the person is dead;

(b) the person is not competent to give the evidence about the fact,

(d) the evidence, under a provision of this Act, may not be given;

(e) all reasonable steps have been taken to find the person or to secure his or her attendance, but without success; or

(f) all reasonable steps have been taken to compel the person to give the evidence, but without success.

(2) In all other cases the person shall be taken to be available to give evidence about the fact.

Unavailability of documents

8. (1) For the purposes of this Act -

(a) a document that cannot be found after reasonable enquiry and search shall be taken not to be available to a party; and

(b) a document that has been destroyed shall be taken not to be available to a party if it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith or was destroyed by some other person.

(2) A document other than a document referred to in subsection (1) shall be taken not to be available to a party if -

(a) it cannot be obtained by any judicial procedure of the court;

(b) it is not in the possession or under the control of the party and is in the possession or under the control of some other party who knows or might reasonably be supposed to know that evidence of the contents of the document is likely to be relevant;

(c) it is not in the possession or under the control of the party and, at a time when it was in the possession or under the control of some other party, that party knew or might reasonably be supposed to have known that evidence of the contents of the document was likely to be relevant; or

(d) the contents of the document are not closely related to an issue that is important in the proceeding.

(3) In all other cases the document shall be taken to be available to the party.

Representations in documents

9. For the purposes of this Act, where a representation is contained in a document that-

(a) was written, made, dictated or otherwise produced by a person; or

(b) was recognised by a person as his or her representation by signing, initialling or otherwise marking the document,

the representation shall be taken to have been made by the person.

Witnesses

10. Unless the contrary intention appears -

(a) a reference in this Act to a witness includes a reference to a party giving evidence; and

(b) a reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence.

PART II - APPLICATION OF ACT

Courts and proceedings to which Act applies

11.(1) This Act applies to and in relation to all proceedings in a federal court or in a court of a Territory other than the Northern Territory, including such a proceeding that -

(a) relates to bail;

(b) is an interlocutory proceeding or a proceeding of a like kind; or

(2) This Act does not apply to or in relation to -

(a) a proceeding the hearing of which began before the commencement of this Act;

(b) a criminal proceeding, so far as that proceeding concerns the determination of the penalty to be imposed in respect of an offence;

(d) an appeal from a court of the Northern Territory.

Territories

12. This Act extends to each external Territory.

Act to bind Crown

13. This Act binds the Crown in each of its capacities.

Operation of other Acts, &c.

14. Subject to section 15, the provisions of an enactment other than this Act have effect notwithstanding this Act.

Application of certain provisions[1]

15. (1) In proceedings to which this Act applies, the provisions of this Act (other than Division 3 of Part VI)) apply to the exclusion of the operation of -

(a) sections 79 and 80 of the Judiciary Act 1903, including the operation of those sections by virtue of section 80A of that Act; and

(b) the principles and rules of the common law and of equity, including those principles and rules as they apply by virtue of section 79, 80 or 80A of that Act.

(2) Sub-section (1) does not apply to exclude the operation of the principles and rules of the common law and of equity, including those principles and rules as they apply by virtue of section 79, 80 or 80A of the Judiciary Act 1903, in connection with -

(a) the operation of section 16 or 17, subsection 53(2), section 82 or subsection 139(2) or 140(4); or

(b) the admission or use of evidence of the kind referred to in paragraph 111(4)(b) in a proceeding that is by way of appeal from a judgment, decree, order or sentence of a court.

Parliamentary privilege preserved

16. Parts IV and V do not affect the law relating to the privileges of a Parliament or of a House of a Parliament.

General powers of the court

17. It is the intention of the Parliament that the power of a court to control the conduct of a proceeding is not, except as expressly or by necessary intendment provided by this Act, to be affected by this Act.

PART III - WITNESSES

Division 1 - Competence and compellability of witnesses

Competence and compellability

18. Except as otherwise provided by this Act -

(a) every person is competent to give evidence; and

(b) a person who is competent to give evidence about a fact is compellable to give that evidence.

Competence: lack of capacity

19. (1) A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give evidence.

(2) A person who is incapable of giving a rational reply to a question about a fact is not competent to give evidence about the fact.

(3) Where -

(a) a person is incapable of hearing or understanding, or of communicating a reply to, a question about a fact; and

(b) that incapacity cannot be overcome, or cannot be overcome without undue cost or undue delay,

the person is not competent to give evidence about the fact.

(4) Unless it appears otherwise, it shall be presumed that a person is not incompetent by reason of subsection (1), (2) or (3).

(5) Evidence that has been given by a witness does not become inadmissible by reason only that, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.

(6) For the purpose of determining a question arising under this section, the court may inform itself as the court thinks fit.

Compellability: Sovereign, &c.

20. (1) The Sovereign, the Governor-General, the Governor of a State, the Administrator of a Territory, a foreign sovereign or the Head of State of a foreign country is not compellable to give evidence.

(2) Where, if a member of a House of the Parliament or a member of the legislature of a State or of a Territory were to be compelled to give evidence, the member would thereby be prevented from attending -

(a) a sitting of the House or the legislature, or a joint sitting of the Parliament or the legislature, of which he or she is a member; or

(b) a meeting of a committee of such a House or legislature, the member is not compellable so to give evidence.

Competence and compellability: Judges and jurors

21. (1) A person who is acting as a judge or juror in a proceeding is not competent to give evidence in the proceeding.

(2) A person who is or was acting as a judge in a legal or administrative proceeding is not compellable to give evidence about the proceeding unless the court gives leave.

Competence and compellability: defendant, &c., in criminal proceedings

22. (1) This section applies only in a criminal proceeding.

(2) A defendant is not competent to give evidence as a witness for

the prosecution.

(3) A person who is being prosecuted for a related offence -

(a) is not compellable to give evidence; and

(b) except with the leave of the court, may not give evidence as a witness for the prosecution.

(4) Where it appears to the court that a witness called by the prosecutor may be a person who is being prosecuted for a related offence, the court shall satisfy itself (if there is a jury, in the absence of the jury) that the witness is aware of the effect of subsection (3).

(5) In determining whether to give leave, the matters that the court shall take into account include -

(a) whether the person has or appears to have a motive to misrepresent a matter as to which the person is to give evidence; and

(b) whether the completion or termination of the prosecution before the person gives evidence is reasonably practicable.

Comment on failure to give evidence

23. In a criminal proceeding, where a defendant has not given evidence, the Judge or a party other than the prosecutor may comment on the failure of the defendant to give evidence but the comment shall not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.

Compellability of spouses, &c., in criminal proceedings

24. (1) This section applies only in a criminal proceeding.

(2) A person who is the spouse, the de facto spouse, a parent or a child of a defendant may object to being required to give evidence as a witness for the prosecution.

(3) The objection shall be made before the witness gives evidence or as soon as practicable after the witness becomes aware of his or her right so to object, whichever is the later.

(4) A witness who is the spouse, the de facto spouse, a parent or a child of a defendant may object to being required to give evidence of a communication made between the witness and that defendant.

(5) Where it appears to the court that a witness may have a right to make an objection under subsection (2) or (4), the court shall satisfy itself that the witness is aware of that provision as it may apply to the witness.

(6) If there is a jury, the court shall hear and determine the objection in the absence of the jury.

(7) Where, on an objection under subsection (2) or (4), the court finds that -

(a) the likelihood of the harm that would or might be caused, whether directly or indirectly, by the witness giving evidence or giving evidence of the communication, as the case may be, to -

(i) the person who made the objection; or

(ii) the relationship between that person and the defendant concerned; and

(b) the nature and extent of any such harm, outweigh the desirability of having the evidence given, the person shall not be required to give the evidence.

(8) For the purposes of subsection (7), the matters that the court shall take into account include -

(a) the nature and gravity of the offence for which the defendant is being prosecuted,

(b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it;

(c) whether any other evidence concerning the matters to which the evidence of the witness would relate is reasonably available to the prosecutor;

(d) the nature of the relationship between the defendant and the person; and

(e) whether, in giving the evidence, the witness would have to disclose matter that was received by the witness in confidence from the defendant.

(9) Where the objection has been determined, the prosecutor may

not comment on the objection, on the decision of the court in relation to the objection or on the failure of the person to give evidence.

(10) In this section -

(a) a reference to a child is a reference to a child of any age and includes a reference to an adopted child and an ex-nuptial child;

(b) a reference to a parent, in relation to a person, includes a reference to an adoptive parent of that person and, in relation to a person who was an ex-nuptial child, also includes a reference to the natural father of that person; and

(c) a reference to the de facto spouse of a person is a reference to a person of the opposite sex to the first-mentioned person who is living with the first-mentioned person as that person's husband or wife although they are not legally married to each other.

Compellability of spouses in civil proceedings

25. In a civil proceeding (not being a proceeding concerning the custody, guardianship or wardship of a child or a proceeding for access to a child), a person who is married is not compellable to give evidence of a communication between the person and his or her spouse made during the marriage.

Division 2 - Sworn and unsworn evidence

Evidence of witnesses to be on oath or affirmation

26. (1) Except as otherwise provided by this Division, a person may not give evidence, [2] or act as an interpreter, in a proceeding unless the person has sworn an oath or made an affirmation in accordance with the appropriate form in the Schedule or in accordance with a similar form.

(2) It is for the person who is to give evidence to choose whether to swear an oath or make an affirmation.

(3) It is not necessary that a religious text be used in swearing an oath.

(4) The court may direct a person who is to give evidence to make an affirmation if -

(a) the person refuses to choose whether to swear an oath or make an affirmation; or

(b) it is not reasonably practicable for the person to swear an appropriate oath.

(5) An oath is effective for the purposes of this section notwithstanding that the person who swore it -

(a) did not have a religious belief or did not have a religious belief of a particular kind; or

(b) did not understand the nature and consequences of the oath.

(6) A person who is called merely to produce a document or object to the court need not swear an oath or make an affirmation before doing so.

Unsworn evidence in criminal proceedings

27. (1) In a criminal proceeding, a defendant may give unsworn evidence. [3]

(2) A defendant who gives unsworn evidence may not also give sworn evidence unless there are special circumstances and the court gives leave.

(3) In giving unsworn evidence, the defendant may read from a statement in writing and may use notes.

(4) Where a legal practitioner appears for the defendant, the legal practitioner may assist the defendant to prepare the statement or notes.

(5) Where a defendant proposes to use a statement in writing or notes, the court may, before the defendant gives the evidence, direct that the statement or notes be produced to the court or to some other party.

(6) Where the defendant is unable to read from a statement in writing, the legal practitioner may, with the leave of the court, read the statement to the court.

(7) After unsworn evidence has been given, the legal practitioner may, with the leave of the court, direct the defendant's attention to matters as to which the defendant has not given unsworn evidence or as to which the defendant might wish to give further unsworn evidence.

(8) A defendant who has given unsworn evidence shall not be cross-examined.

(9) Unsworn evidence given by a defendant may not be used for or against any other defendant.

(10) Sub-sections (8) and (9) do not apply if the defendant gives both sworn and unsworn evidence.

(11) Without affecting any other application of the Crimes Act 1914, sections 35 and 36 of that Act apply in relation to unsworn evidence as they apply in relation to sworn evidence.

Comment on unsworn evidence

28. (1) In a criminal proceeding, where a defendant has given unsworn evidence and has not also given sworn evidence, the Judge or a party other than the prosecutor may comment on the fact that the defendant did not give sworn evidence.

(2) The comment shall not suggest that -

(a) the defendant did not give sworn evidence, or did not offer himself or herself for cross-examination, because the defendant believed that he or she was guilty of the offence concerned; or

(b) unsworn evidence is, by reason only that it is unsworn evidence or that it was not subject to cross-examination, necessarily less persuasive than sworn evidence.

Court to advise witnesses

29. (1) Except as mentioned in subsection (2), before a witness gives evidence, the court shall inform the witness that witnesses have a choice of sweating an oath or making an affirmation before giving evidence.

(2) In a criminal proceeding, before a defendant gives evidence, the court shall inform the defendant (if there is a jury, in the presence of the jury) that -

(a) witnesses have a choice of swearing an oath or making an affirmation before giving evidence; and

(b) defendants in criminal proceedings need not swear an oath or make an affirmation before giving evidence, but a defendant in such a proceeding who gives evidence without first having sworn an oath or made an affirmation may not also give sworn evidence without the leave of the court.

(3) In a criminal proceeding, where a defendant is not represented in the proceeding by a legal practitioner, the court shall, before the defendant gives evidence, inform the defendant, (if there is a jury, in the absence of the jury) that -

(a) sworn evidence may be more persuasive than unsworn evidence; and

(b) it is a serious offence knowingly to give false evidence, whether it is sworn evidence or not.

Division 3 - Manner of giving evidence[4]

Subdivision A - General rules

Court to control questioning of witnesses

30. Subject to this Act, the court may, in its discretion, make such orders as are just in relation to -

(a) the manner in which witnesses are to be questioned;

(b) the production and use of documents and things in connection with the questioning of witnesses; and

Parties may question witnesses

31. Except as otherwise provided by this Division, a party may question any witness.

Examination in chief to be completed before other questioning

32. Unless the court otherwise directs -

(a) cross-examination of a witness shall not take place before the examination-in-chief of the witness; and

(b) re-examination of a witness shall not take place until all other parties who wish to do so have cross-examined the witness.

Manner and form of questioning witnesses

33. (1) Except as otherwise provided by this Division or as directed by the court, a party may question a witness in any way the party thinks fit.

(2) Evidence may be given in whole or in part in narrative form and the court may direct that it be so given.

Interpreters

34. A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand fully, and to make an adequate reply to, questions that may be put about the fact.

Deaf and mute witnesses

35. (1) A witness who cannot adequately hear may be questioned in any appropriate manner.

(2) A witness who cannot adequately speak may give evidence by any appropriate means.

Attempts to revive memory in court

36. (1) A witness may not, in the course of giving evidence, use a document to try to revive his or her memory about a fact without the leave of the court.

(2) The matters that the court shall take into account in determining whether to give leave include -

(a) whether the witness will be able to recall the fact adequately without using the document; and

(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that -

(i) was written or made by the witness at a time when the events recorded in it were fresh in his or her memory; or

(ii) was, at such a time, found by the witness to be accurate.

(3) Where a witness has, while giving evidence, used a document to try to revive his or her memory about a fact, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact.

(4) Where leave has been given as mentioned in this section, the court shall, on the request of a party, give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.

Attempts to revive memory out of court

37. (1) The court may, if a party so requests, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding.

(2) Where, without reasonable excuse, the directions have not been complied with, the court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory.

Direction not to extend to certain documents

38. (1) Where, by virtue of section 106, evidence of the contents of a document may not adduced, a direction under subsection 37(1) shall not be made so as to require the production of the document.

(2) The objection required under section 106 is also required in connection with the operation of subsection (1).

Effect of calling for production of documents

39. (1) A party shall not be required to tender a document by reason only that the party, whether under this Act or otherwise, called for the document to be produced to the party or inspected it when it was so produced.

(2) Where a document so called for has been produced or inspected and the party to whom it was produced or who inspected it has failed to tender it, the party who produced it is not for that reason entitled to tender it.

Subdivision B - Examination in chief and re-examination

Leading questions

40. A leading question, other than a question that relates to a matter introductory to the evidence of the witness or to a matter that is not in dispute, shall not be put to a witness in examination in chief or in reexamination unless the court gives leave.

Unfavourable, &c., witnesses

41. (1) Where a witness gives evidence that is unfavourable to the party who called the witness, that party may, with the leave of the court, question the witness about that evidence as though the party were cross-examining the witness.

(2) Where, in examination in chief, a witness appears to the court not to be making a genuine attempt to give evidence about a matter of which the witness may reasonably be supposed to have knowledge, the party who called the witness may, with the leave of the court, question the witness about that matter as though the party were cross-examining the witness.

(3) A party who is questioning a witness as mentioned in subsection (1) or (2) may also, with the leave of the court, question the witness about matters relevant only to the credibility of the witness, and such questioning shall be taken to be cross-examination for the purposes of this Act. [5]

(4) Unless the court otherwise directs, questioning as mentioned in this section shall take place before the other parties cross-examine the witness.

(5) Where the court so directs, the order in which the parties question the witness shall be as the court directs.

(6) The matters that the court shall take into account in determining whether to give leave, or give a direction, under this section include -

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by some other party.

Limits on re-examination

42. On re-examination, a witness may be questioned as to matters arising out of or related to evidence given by the witness in cross-examination and other questions may not be put to the witness without the leave of the court.

Subdivision C - Cross-examination

Witness called in error

43. A party may not cross-examine a witness who has been called in error by some other party and has not been questioned by that other party about a matter relevant to a question to be determined in the proceeding.

Improper questions

44. (1) If a misleading question, or a question that is unduly annoying, harassing, intimidating, offensive, oppressive or repetitive, is put to a witness in cross-examination, the court may disallow the question or inform the witness that it need not be answered.

(2) For the purposes of subsection (1), the matters that the court shall take into account include any relevant condition or characteristic of the witness, including age, personality and education and any mental, intellectual or physical disability to which the witness is or appears to be subject.

Leading questions

45. (1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.

(2) In determining whether to disallow the question or give such a direction, the matters that the court shall take into account include the extent to which -

(a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness;

(b) the witness has an interest consistent with an interest of the cross-examiner;

(d) the facts will be better ascertained if leading questions are not used.

(3) Sub-section (1) does not limit the power of the court to control leading questions.

Prior inconsistent statements of witness

46. (1) It is not necessary that complete particulars of a prior inconsistent statement alleged to have been made by a witness be given to the witness, or that a document that contains a record of the statement be shown to the witness, before the witness may be cross-examined about the statement.

(2) Where, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the party who cross-examined the witness may not adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, that party -

(a) gave the witness such particulars of the statement as are reasonably necessary to enable the witness to identify the statement; and

(b) drew the attention of the witness to so much of the statement as is inconsistent with the evidence of the witness.

(3) For the purposes of adducing that evidence, the party may reopen the party's case.

Previous representations of other persons

47. (1) Except as provided by this section, a cross-examiner may not, in cross-examination of a witness, use a previous representation alleged to have been made by a person other than the witness.

(2) Where evidence of such a representation has been admitted or the court is satisfied that it will be admitted, the cross-examiner may question the witness about it and its contents.

(3) Where -

(a) such a representation is recorded in a document; and

(b) evidence of the representation has not been admitted and the court is not satisfied that, if it were to be adduced, it would be admitted,

the document may only be used as follows:

(a) the document may be produced to the witness;

(b) the witness may be asked whether, having examined the contents of the document, he or she adheres to the evidence that he or she has given; and

(4) A document used as mentioned in subsection (3) may be marked for identification.

Production of documents

48. (1) Where a cross-examiner -

(a) is cross-examining or has cross-examined a witness about a prior inconsistent statement alleged to have been made by the witness; or

(b) in cross-examination of a witness, is using or has used a previous representation alleged to have been made by some other person,

being a statement or representation that is recorded in a document, the cross-examiner shall, if the court so orders or if some other party so requires, produce the document, or such evidence of the contents of the document as is available to the cross-examiner, to the court or to that other party.

(2) Where a document or evidence has been so produced, the court may -

(a) examine it;

(b) give directions as to its use; and

(3) A cross-examiner shall not, by reason only of having produced a document to a witness who is being cross-examined, be required to tender the document.

Certain matters to be put to witness

49. Where a party adduces evidence -

(a) that contradicts evidence already given in examination in chief by a witness called by some other party; or

(b) about a matter as to which a witness who has already been called by some other party was able to give evidence in examination in chief,

and the evidence adduced has been admitted, [6] the court may, if the firstmentioned party did not cross-examine the witness about the matter to which the evidence relates, give leave to the party who called the witness to re-call the witness to be questioned about the matter.

PART IV - ADMISSION OF EVIDENCE: RELEVANCE RULE

Relevant evidence

50. (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, whether directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence shall not be taken to be irrelevant by reason only that it relates to -

(a) the credibility of a party or a witness;

(b) the admissibility of other evidence; or

Relevant evidence to be admissible

51. Evidence that is relevant in a proceeding is, except as otherwise provided by this Act, [7] admissible, and shall be admitted, in the proceeding and evidence that is not relevant in the proceeding is not so admissible.

Provisional relevance

52. (1) Where the determination of the question whether evidence adduced by a party is relevant depends on the court's making some other finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant -

(a) if it is reasonably open to make that finding; or

(b) subject to further evidence being admitted such that, at some later stage of the proceeding, it will be reasonably open to make that finding.

(2) Without limiting subsection (1), where the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had a common purpose to effect an unlawful conspiracy, the court may use the evidence itself in determining whether such a common purpose existed.

Inferences as to relevance

53. (1) Where a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.

(2) Sub-section (1) does not limit the matters from which inferences may properly be drawn.

PART V - ADMISSION AND USE OF EVIDENCE:

EXCLUSIONARY RULES

Division 1 - Hearsay evidence

Subdivision A - The hearsay rule

Exclusion of hearsay evidence

54. (1) Evidence of a previous representation is not admissible to prove the existence of a fact intended by the person who made the representation to be asserted by the representation. [8]

(2) Such a fact is in this Division referred to as an asserted fact.

(3) Where evidence of a previous representation is relevant otherwise than as mentioned in subsection (1), that subsection does not prevent the use of the evidence to prove the existence of an asserted fact. [9]

Subdivision B - "First-hand" hearsay

Restriction to "first-hand" hearsay

55. (1) A reference in this Subdivision to a previous representation is a reference to a previous representation that was made by a person whose knowledge of the asserted fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived, other than a previous representation made by some other person about the asserted fact.

(2) Such knowledge is in this Division referred to as personal knowledge.

Exception: civil proceedings where maker not available

56. In a civil proceeding, where the person who made a previous representation is not available to give evidence about an asserted fact, the hearsay rule does not apply in relation to -

(a) oral evidence of the representation that is given by a person who saw, heard or otherwise perceived the making of the representation; or

(b) a document so far as it contains the representation or some other representation to which it is reasonably necessary to refer to understand the representation. [10]

Exception: civil proceedings where maker available

57. (1) This section applies in a civil proceeding where the person who made a previous representation is available to give evidence about an asserted fact.

(2) Where it would cause undue expense or undue delay, or would not be reasonably practicable, to call that person to give evidence, the hearsay rule does not apply in relation to -

(a) oral evidence of the representation given by a person who saw, heard or otherwise perceived the making of the representation; or

(b) a document so far as it contains the representation or some other representation to which it is reasonably necessary to refer to understand the representation. [11]

(3) Where that person has been or is to be called to give evidence, the hearsay rule does not apply in relation to evidence of the representation that is given by -

(a) that person; or

(b) a person who saw, heard or otherwise perceived the making of the representation,

if, at the time when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(4) Where subsection (3) applies in relation to a representation, a document containing the representation shall not, unless the court gives leave, be tendered before the conclusion of the examination in chief of the person who made the representation.

Exception: criminal proceedings where maker not available

58. (1) This section applies in a criminal proceeding where the person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply in relation to evidence of a previous representation that is given by a witness who saw, heard or otherwise perceived the making of the representation, being a representation that was -

(a) made under a duty to make that representation or to make representations of that kind;

(b) made at or shortly after the time when the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication;

(c) made in the course of giving sworn evidence in a legal or administrative proceeding, if the defendant, in that proceeding, cross-examined the person who made the representation, or had a reasonable opportunity to cross-examine that person, about it; or

(d) against the interests of the person who made it at the time when it was made. [12]

(3) For the purposes of paragraph (2)(c), a defendant who was not present at a time when the cross-examination of a person might have been conducted but could reasonably have been present at that time may be taken to have had a reasonable opportunity to cross-examine the person.

(4) If a representation -

(a) tends to damage the reputation of the person who made it;

(b) tends to show that that person has committed an offence; or

then, for the purposes of paragraph (2)(d), the representation shall be taken to be against the interests of the person who made it.

(5) The hearsay rule does not prevent the admission or use of evidence of a previous representation adduced by a defendant, being evidence that is given by a witness who saw, heard or otherwise perceived the making of the representation. [13]

(6) Where evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply in relation to evidence of a previous representation about the matter adduced by some other party, being evidence given by a witness who saw, heard or otherwise perceived the making of the second-mentioned representation.

Exception: criminal proceedings where maker available

59. (1) In a criminal proceeding, where the person who made a previous representation is available to give evidence about an asserted fact, the hearsay rule does not apply in relation to evidence of the previous representation that is given by -

(a) that person; or

(b) a person who saw, heard or otherwise perceived the representation being made,

if -

(c) at the time when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation; and

(d) the person who made it has been or is to be called to give evidence in the proceeding.

(2) Subsection (1) does not apply in relation to evidence adduced by the prosecutor of a representation that was made for the purpose of indicating the evidence that the person who made it would be able to give in a legal or administrative proceeding.

(3) Where subsection (1) applies in relation to a representation, a document containing the representation shall not, unless the court gives leave, be tendered before the conclusion of the examination in chief of the person who made the representation.

Notice to be given

60. (1) Subject to the succeeding provisions of this section, the provisions of section 56 and subsections 57(2), 58(2) and 58(5) do not apply in relation to evidence adduced by a party unless that party has given notice in writing in accordance with the regulations to each other party of the intention to adduce the evidence.

(2) Where such a notice has not been given, the court may, on the application of a party and subject to conditions, direct that one or more of those provisions is to apply -

(a) notwithstanding the failure of the party to give such notice; or

(b) in relation to specified evidence with such modifications as the court specifies.

(3) In a civil proceeding, where the writing by which notice is given discloses that it is not intended to call the person who made the previous representation concerned on a ground referred to in subsection 57(2), a party may, not later than 7 days after notice has been given, by notice in writing given to each other party, object to the tender of the evidence, or of a specified part of the evidence.

(4) The notice shall set out the grounds on which the objection is based.

(5) The court may determine the objection on the application of a party made at or before the hearing.

(6) If the objection is unreasonable, the court may order that the party objecting shall, in any event, bear the costs (ascertained on a solicitor and client basis) incurred by another party -

(a) in relation to the objection; and

(b) in calling the person who made the representation to give evidence.

Subdivision C - Other hearsay

Exception: business records[14]

61. (1) Where a previous representation -

(a) is contained in a document that is or forms part of the records belonging to or kept by a business or at any time was or formed part of such a record; and

(b) was made or recorded in the document in the course of, or for the purposes of, a business,

then, if the representation was made -

(d) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact,

the hearsay rule does not prevent the admission or use of the document so far as it contains the representation. [15]

(2) Sub-section (1) does not apply if the representation was prepared or obtained for the purpose of conducting, or in contemplation of or in connection with, a legal or administrative proceeding.

(3) Where -

(a) the happening of an event of a particular kind is in question; and

(b) in the course of a business, a system has been followed of making and keeping a record of the happening of all events of that kind,

the hearsay rule does not prevent the admission or use of evidence that tends to prove that there is no record kept in accordance with that system of the happening of the event.

Exception: contents of tags, labels, &c.[16]

62. Where a document has been attached to an object or writing has been placed on a document or object, being a document or writing that may reasonably be supposed to have been so attached or placed in the course of a business, the hearsay rule does not prevent the admission or use of the document or writing.

Exception: telecommunications[17]

63. Where a document has been -

(a) produced by a telecommunications installation; or

(b) received from the Australian Telecommunications Commission,

being a document that records a message that has been transmitted by means of a telecommunications service, the hearsay rule does not prevent the admission or use of a representation in the document as to -

(d) the date on Which, the time at which or the place from which the message was sent; or

(e) the identity of the person to whom the message was addressed.

Exception: reputation as to certain matters

64. (1) The hearsay rule does not prevent the admission or use of evidence of -

(a) reputation that a man and a woman cohabitating at a particular time were married to each other at that time;

(b) reputation as to family history or a family relationship; or

(2) In a criminal proceeding, subsection (1) does not apply in relation to evidence adduced by the prosecutor, but, where evidence as mentioned in subsection (1) has been admitted, this subsection does not prevent the admission or use of evidence that tends to contradict it.

Exception: interlocutory proceedings

65. The hearsay rule does not prevent the admission or use of evidence adduced in an interlocutory proceeding if the party who adduces it also adduces evidence of its source.

Division 2 - Opinion evidence

Exclusion of opinion evidence

66. (1) Evidence of an opinion is not admissible to prove the existence of a fact as to the existence of which the opinion was expressed. [18]

(2) Where evidence of an opinion is relevant otherwise than as mentioned in subsection (1), that subsection does not prevent the use of the evidence to prove the existence of a fact as to the existence of which the opinion was expressed.

Exception: lay opinions

67. Where -

(a) an opinion expressed by a person is based on what the person saw, heard or otherwise noticed about a matter or event; and

(b) evidence of the opinion is necessary to obtain an adequate account of the person's perception of the matter or event,

the opinion rule does not prevent the admission or use of the evidence.

Exception: opinions based on specialised knowledge

68. Where a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not prevent the admission or use of evidence of an opinion of that person that is wholly or substantially based on that knowledge.

Ultimate issue and common knowledge rules abolished

69. Evidence of an opinion is not inadmissible by reason only that it is about -

(a) a fact in issue; or

(b) a matter of common knowledge.

Division 3 - Admissions

Interpretation: sound recording

70. A reference in this Division to a sound recording includes a reference to a recording of visual images and sounds.

Hearsay and opinion rules: exception for admissions

71. (1) The hearsay rule and the opinion rule do not prevent the admission or use of -

(a) evidence of an admission; or

(b) evidence of a previous representation made in relation to an admission at the time when the admission was made or shortly before or shortly after that time, being a representation to which it is reasonably necessary to refer to understand the admission. [19]

(2) Subject to subsection (3), where, by reason only of the operation of subsection (1), the hearsay rule and the opinion rule do not prevent the admission or use of evidence of an admission or of a previous representation as mentioned in paragraph (1)(b), the evidence may, if admitted, be used only in relation to the case of the party who made the admission concerned and the case of the party who adduced the evidence.

(3) The evidence may be used in relation to the case of some other party if that other party consents but consent may not be given in respect of part only of the evidence.

Exclusion of admissions influenced by violence, &c.

72. Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by violent, oppressive, inhuman or degrading conduct, whether toward the person who made the admission or toward some other person, or by a threat of conduct of that kind.

Criminal proceedings: reliability of admissions by defendants

73. (1) This section applies only in a criminal proceeding and only in relation to evidence of an admission made by a defendant.

(2) Evidence of an admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3) For the purposes of subsection (2), evidence that the admission is true or untrue is not relevant.

(4) For the purposes of subsection (2), the matters that the court shall take into account include -

(a) any relevant condition or characteristic of the person who made the admission, including the age, personality and education of the person and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning -

(i) the nature of the questions and the manner in which they were put; and

(ii) the nature of any threat, promise or representation made to the person questioned.

Criminal proceedings: admissions by suspects

74. (1) This section applies only -

(a) in a criminal proceeding;

(b) in relation to evidence of an admission made by a defendant who, at the time when the admission was made, was or ought reasonably to have been suspected by an investigating official of having committed an offence; and

(2) Evidence of the admission is not admissible unless -

(a) there is available to the court -

(i) a sound recording of the questioning, and of the admission; or

(ii) if it was not reasonably practicable to have made such a recording - a sound recording of questioning of the person who made the admission about the making of the admission, and of a representation by that person in the course of that questioning that the admission was made; or

(b) the questioning was conducted, and the admission made, in the presence of a person (not being an investigating official) who -

(i) was a legal practitioner acting for the person who made the admission; or

(ii) if no such legal practitioner was reasonably available, had been chosen by that person,

(iii) or it was not reasonably practicable to make such a recording or have such a person present.

(3) The hearsay rule and the opinion rule do not prevent the admission or use of a sound recording as mentioned in subparagraph (2) (a)(ii).

(4) Evidence of the admission is not admissible unless, before the admission was made, the person who made it was informed by an investigating official that, except and to the extent that the person is required by law to furnish specified information to the investigating official, the person need not say or do anything, or answer any questions, in connection with the investigation but that anything that he or she said or did might be given in evidence.

Exclusion of records of oral questioning

75. (1) Where an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official, a document prepared by or on behalf of the official is not admissible in a criminal proceeding to prove the contents of the question, representation or response unless the defendant has, by signing, initialling or otherwise marking the document, acknowledged that the document is a true record of the question, representation or response.

(2) In subsection (1), "document" does not include a sound recording or a transcript of a sound recording.

Admissions made with authority

76. (1) Where it is reasonably open to find that -

(a) at the time when a previous representation was made, the person who made it had authority to make statements on behalf of a party in relation to the matter with respect to which the representation was made;

(b) at the time when a previous representation was made, the person who made it -

(i) was an employee of a party; or

(ii) had authority otherwise to act for a party, and the representation related to a matter within the scope of the person's employment or authority; or

(c) a previous representation was made by a person in furtherance of a common purpose (whether lawful or not) that the person had with a party or with a party and one or more other persons,

the representation shall, for the purpose only of determining whether it is to be taken to be an admission, be taken to have been made by the party.

(2) For the purposes of the application of subsection (1), the hearsay rule does not prevent the admission or use of a previous representation made by a person that tends to prove -

(a) that the person -

(i) was an employee of a party; or

(ii) had authority to act for a party;

(b) the scope of the person's employment or authority; or

Proof of making of admission

77. Where it is reasonably open to find that a particular person made a previous representation, the court shall, for the purpose of determining whether evidence of the representation is admissible, find that the person made the representation.

Evidence of silence

78. (1) An inference unfavourable to a party may not be drawn from evidence that the party or some other person failed or refused to answer a question, or respond to a representation put or made to the person in the course of official questioning.

(2) Where evidence of that kind may only be used to draw such an inference, it is not admissible.

(3) Subsection (1) does not prevent the use of the evidence to prove that the person failed or refused to answer the question or respond to the representation if the failure or refusal is a fact in issue in the proceeding.

Discretion to exclude admissions[20]

79. In a criminal proceeding, where evidence of an admission is adduced by the prosecution and, having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence, the court may -

(a) refuse to admit the evidence; or

(b) refuse to admit the evidence to prove a particular fact.

Division 4 - Evidence of judgments and convictions

Exclusion of evidence of judgments and convictions

80. (1) Evidence of the decision in a legal or administrative proceeding is not admissible to prove the existence of a fact that was in issue in the legal or administrative proceeding. [21]

(2) Where evidence of such a decision is relevant otherwise than as mentioned in subsection (1), it may not be used for the purpose mentioned in that subsection.

Exceptions

81. (1) Subsection 80(1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or like order of a court to prove -

(a) the death or date of death of the person concerned; or

(b) the due execution of the testamentary document concerned.

(2) An a civil proceeding, subsection 80(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction -

(a) in respect of which a review or appeal (however described) has been instituted but not finally determined;

(b) that has been quashed or set aside; or

(3) Where, by virtue of subsection (1) or (2), subsection 80(1) does not prevent the admission or use of evidence, the hearsay rule and the opinion rule do not prevent the admission or use of that evidence.

Savings

82. Sections 80 and 81 do not affect the operation of -

(a) a law that relates to the admissibility or effect of evidence of a conviction tendered in a proceeding (including a criminal proceeding) for defamation;

(b) a judgment in rem; or

Division 5 - Evidence of conduct and character relevant to issues

Subdivision A - Preliminary

Interpretation

83. A reference in this Division to the doing of an act includes a reference to a failure to act.

Application

84. (1) This Division does not apply in relation to evidence that relates only to the credibility of a witness. [22]

(2) This Division does not apply so far as a proceeding relates to bail.

(3) This Division does not apply in relation to evidence of the character, reputation or conduct of a person, or in relation to evidence of a tendency that a person has or had, if that character, reputation, conduct or tendency, respectively, is a fact in issue.

Use of evidence for other purposes

85. Where evidence that, under a provision of this Division, is not admissible to prove a particular matter is relevant otherwise than as mentioned in that provision, the evidence may not be used to prove that matter.

Subdivision B - Tendency evidence

Exclusion of tendency evidence

86. Evidence of the character, reputation or conduct of a person, or of a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way or to have a particular state of mind. [23]

Subdivision C - Conduct evidence

Exception: conduct (including of accused) to prove tendency

87. Where there is a question whether a person did a particular act or had a particular state of mind and it is reasonably open to find that -

(a) the person did some other particular act or had some other particular state of mind, respectively; and

(b) all the acts or states of mind, respectively, and the circumstances in which they were done or existed, are substantially and relevantly similar,

the tendency rule does not prevent the admission or use of evidence that the person did the other act or had the other state of mind, respectively. [24]

Exclusion of evidence of conduct (including of accused) to prove improbability of co-incidence

88. Evidence that 2 or more events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind unless it is reasonably open to find that -

(a) the events occurred and the person could have been responsible for them; and

(b) all the events, and the circumstances in which they occurred, are substantially and relevantly similar. [25]

Further protections: prosecution evidence of conduct of accused

89. (1) This section applies in relation to evidence in a criminal proceeding adduced by the prosecutor and so applies in addition to sections 87 and 88.

(2) Evidence that the defendant did or could have done an act or had or could have had a particular state of mind, being an act or state of mind that is similar to an act or state of mind the doing or existence of which is a fact in issue, is not admissible unless -

(a) the existence of that fact in issue is substantially in dispute in the proceeding; and

(b) the evidence has substantial probative value.

(3) In determining whether the evidence has substantial probative value, the matters to which the court shall have regard include -

(a) the nature and extent of the similarity;

(b) the extent to which the act or state of mind to which the evidence relates is unusual;

(c) in the case of evidence of a state of mind - the extent to which the state of mind is unusual or occurs infrequently; and

(d) in the case of evidence of an act -

(i) the likelihood that the defendant would have repeated the act;

(ii) the number of times on which similar acts have been done; and

(iii) the period that has elapsed between the time when the act was done and the time when the defendant is alleged to have done the act that the evidence is adduced to prove.

Notice to be given

90. (1) Subject to subsection (2) -

(a) section 87 does not apply in relation to evidence adduced by a party; and

(b) evidence adduced by a party to which section 88 applies is not admissible,

unless that party has given notice in writing in accordance with the

regulations to each other party of the intention to adduce the evidence.

(2) The court may, on the application of a party and subject to conditions, direct that one or more of those provisions is or are to apply -

(a) notwithstanding the failure of the party to give such notice; or

(b) in relation to specified evidence - with such modifications as the court specifies.

Subdivision D - Character evidence

Exception: character of accused

91. (1) This section applies in a criminal proceeding.

(2) The hearsay rule, the opinion rule and the tendency rule do not prevent the admission or use of evidence adduced by a defendant that tends to prove that the defendant is, either generally or in a particular respect, a person of good character.

(3) Where evidence that tends to prove that the defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule and the tendency rule do not prevent the admission or use of evidence that tends to prove that the defendant is not generally a person of good character.

(4) Where evidence that tends to prove that the defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule and the tendency rule do not prevent the admission or use of evidence that tends to prove that the defendant is not a person of good character in that respect.

Exception: character of co-accuseds

92. (1) In a criminal proceeding, the hearsay rule and the tendency rule do not prevent the admission or use of evidence of an opinion about a defendant adduced by some other defendant if -

(a) the person whose opinion it is has specialised knowledge based on the person's training, study or experience; and

(b) the opinion is wholly or substantially based on that knowledge. [26]

(2) Where evidence of an opinion as mentioned in subsection (1) has been admitted, the hearsay rule, the opinion rule and the tendency rule do not prevent the admission or use of evidence that tends to prove that that evidence should not be accepted.

Cross-examination of accused by leave only

93. A defendant in a criminal proceeding may not be cross-examined as to matters arising out of evidence to which section 91 or 92 applies unless the court gives leave.

Division 6 - Credibility

Exclusion of evidence relevant to credibility

94. (1) Evidence that relates to the credibility of a witness is not admissible to prove that the evidence of the witness should or should not be accepted. [27]

(2) Where such evidence is relevant otherwise than as mentioned in subsection (1), that subsection does not prevent the use of the evidence to prove that the evidence of the witness should or should not be accepted.

Exception: character of accuseds

95. (1) This section applies in a criminal proceeding.

(2) The hearsay rule, the opinion rule and the credibility rule do not prevent the admission or use of evidence adduced by a defendant that tends to prove that the defendant is, either generally or in a particular respect, a person of good character.

(3) Where evidence that tends to prove that the defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule and the credibility rule do not prevent the admission or use of evidence that tends to prove that the defendant is not generally a person of good character.

(4) Where evidence that tends to prove that the defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule and the credibility rule do not prevent the admission or use of evidence that tends to prove that the defendant is not a person of good character in that respect.

Exception: cross-examination as to credibility

96. (1) The credibility rule does not prevent the admission or use of evidence that relates to the credibility of a witness and has been adduced in cross-examination of the witness.

(2) Where such evidence -

(a) is relevant only because it is relevant to the credibility of the witness; and

(b) does not have substantial probative value as to the credibility of the witness,

it is not admissible.

(3) The matters to which the court shall have regard in determining whether the evidence has such substantial probative value include -

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation at a time when the witness was under an obligation to tell the truth; and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

Further protections: cross-examination of accused

97. (1) This section only applies in a criminal proceeding and so applies in addition to section 96.

(2) Subject to the succeeding provisions of this section, a defendant may not be cross-examined as to a matter that is relevant only because it is relevant to the credibility of the defendant unless the court gives leave.

(3) Leave is not required for cross-examination by the prosecutor as to whether the defendant -

(a) is biased or has a motive to be untruthful;

(b) was or is unable to be aware of or recall matters to which his or her evidence relates; or

(4) Leave shall not be given for cross-examination by the prosecutor as to any other matter that is relevant only because it is relevant to the credibility of the defendant unless -

(a) evidence has been adduced by the defendant that tends to prove that the defendant is, either generally or in a particular respect, a person of good character; or

(b) evidence has been admitted that -

(i) was given by the defendant;

(ii) tends to prove that a witness called by the prosecutor has a tendency to be untruthful; and

(iii) was adduced solely or mainly to impugn the credibility of that witness.

(5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct -

(a) in the events in relation to which; or

(b) in relation to the investigation of the offence for which,

the defendant is being prosecuted.

(6) Leave shall not be given for cross-examination by some other defendant unless the evidence that the defendant to be cross-examined has given includes evidence adverse to the first-mentioned defendant and that evidence has been admitted.

Where unsworn evidence given

98. In a criminal proceeding, where a defendant has given unsworn evidence only, sections 96 and 97 apply in relation to evidence that is relevant only because it is relevant to the credibility of that defendant as if that defendant had given sworn evidence and the evidence concerned had been adduced in cross-examination of the defendant.

Exception: rebutting denials by other evidence

99. (1) Where evidence that a witness -

(a) is biased or has a motive to be untruthful;

(b) has been convicted of an offence, including an offence against the law of a foreign country; or

is adduced otherwise than from the witness, the credibility rule does not prevent the admission or use of the evidence if the witness has denied the substance of the evidence.

(2) Where evidence that a witness -

(a) is or was unable to be aware of matters to which his or her evidence relates; or

(b) knowingly or recklessly made a false representation while under an obligation imposed by or under a law, including a law of a State or a Territory or of a foreign country, to tell the truth,

is adduced otherwise than from the witness, the credibility rule does not prevent the admission or use of the evidence if -

(d) the court has given leave to adduce the evidence.

Exception: application of certain provisions to maker of representations

100. Where -

(a) by virtue of one of the provisions of Division 1, the hearsay rule does not prevent the admission of evidence of a previous representation;

(b) evidence of the representation has been admitted; and

the credibility rule does not prevent the admission or use of evidence about matters as to which the person could have been cross-examined if he or she had given evidence.

Exception: re-establishing credibility

101. (1) The credibility rule does not prevent the admission or use of evidence adduced in re-examination of a witness. [28]

(2) The credibility rule does not prevent the admission or use of evidence that explains or contradicts evidence adduced as mentioned in section 98 or 100, if the court gives leave to adduce that evidence.

(3) Without limiting subsection (1) or (2), where -

(a) evidence of a prior inconsistent statement of a witness has been admitted-, or

(b) it is suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,

the credibility rule does not prevent the admission or use of evidence of a prior consistent statement of the witness if the court gives leave to adduce the evidence.

Division 7 - Identification evidence

Application of Division

102. This Division applies only in a criminal proceeding.

Exclusion of identification evidence

103. (1) Identification evidence adduced by the prosecutor is not admissible unless -

(a) either -

(i) an identification parade that included the defendant was held before the identification was made; or

(ii) it would not have been reasonable to have held such a parade; and

(b) the identification was made without the person who made it having been intentionally influenced to make it.

(2) Without limiting subsection (1), the matters to be taken into account in determining whether it was reasonable to hold an identification parade as mentioned in that subsection include -

(a) the kind of offence, and the gravity of the offence, concerned;

(b) the importance of the evidence;

(i) if the defendant refused to co-operate in the conduct of the parade - to the manner and extent of, and the reason (if any) for, the refusal; and

(ii) in any case - whether the identification was made at or about the time of the commission of the relevant offence; and

(d) the appropriateness of holding such a parade having regard, among other things, to the relationship, if any, between the defendant and the person who made the identification.

(3) Where -

(a) the defendant refused to co-operate in the conduct of an identification parade unless a legal practitioner acting for him or her was present while it was being held; and

(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such a legal practitioner so to be present,

it shall be presumed that it would not have been reasonable to have held an identification parade at that time.

(4) In determining whether it was reasonable to have held an identification parade, the court shall not take into account the availability of pictures that could be used in making identifications.

Exclusion of evidence of identification by pictures

104. (1) This section -

(a) applies in relation to identification evidence adduced by the prosecutor where the identification was made wholly or partly as a result of the person who made the identification examining pictures kept for the use of police officers; and

(b) applies in addition to section 103.

(2) Where the defendant was in the custody of a police officer in connection with the investigation of an offence at the time when the pictures were examined, the identification evidence is not admissible unless -

(a) the picture of the defendant that was examined was made after the defendant had been taken into that custody; or

(b) the pictures examined included a reasonable number of pictures of persons who were not, at the time when the pictures were made, in the custody of a police officer in connection with the investigation of an offence,

and the identification was made without the person who made it having been intentionally influenced to make that identification.

(3) In any other case, the identification evidence is not admissible unless the pictures examined included a reasonable number of pictures of persons who were not, at the time when the pictures were made, in the custody of a police officer in connection with the investigation of an offence.

(4) Where evidence concerning an identification of a defendant that was made after examining a picture has been adduced by that defendant, the preceding provisions of this section do not render inadmissible evidence adduced by the prosecutor, being evidence that contradicts or qualifies that evidence.

(5) In this section -

(a) "picture" includes "photograph'; and

(b) a reference to the making of a picture includes a reference to the taking of a photograph.

Directions to jury

105. (1) Where identification evidence has been admitted, the Judge shall, if the defendant so requests, inform the jury that there is a special need for caution before accepting identification evidence and of the reasons for that need for caution, both generally and in the circumstances of the case.

(2) In particular, the Judge shall warn the jury that it should not find, on the basis of the identification evidence, that the defendant was a person by whom the relevant offence was committed unless -

(a) there are, in relation to the identification, special circumstances that tend to support the identification; or

(b) there is substantial evidence (not being identification evidence) that tends to prove the guilt of the defendant and the jury accepts that evidence.

(3) Special circumstances include -

(a) the defendant being known to the person who made the identification; and

(b) the identification having been made on the basis of a characteristic that is unusual.

(4) Where -

(a) it is not reasonably open to find the defendant guilty except on the basis of identification evidence;

(b) there are no special circumstances of the kind mentioned in paragraph (2)(a); and

the Judge shall direct that the defendant be acquitted.

(5) Where identification evidence has been admitted, the Judge shall, if the defendant is not represented in the proceeding by a legal practitioner, inform the defendant that he or she may make a request under subsection (1).

Division 8 - Privileges

Subdivision A - Client legal privilege

Privilege in respect of legal advice and litigation, &c.

106. (1) Where, on objection by a person (in this Subdivision called the client), the court finds that the adducing of evidence would involve the disclosure of -

(a) a confidential communication made between -

(i) the client and a legal practitioner;

(ii) or more legal practitioners acting for the client; or

(iii) employees or agents of such legal practitioners; or

(b) the contents of a document (whether delivered or not) that was prepared by the client or a legal practitioner,

for the dominant purpose of the legal practitioner, or of one of the legal practitioners, providing legal advice to the client, the court shall direct that the evidence not be adduced.

(2) Where, on objection by a person (in this Subdivision also called a client), the court finds that the adducing of evidence would result in the disclosure of -

(a) a confidential communication between -

(i) or more of the persons mentioned in subsection (1);

(ii) a person referred to in subsection (1) and some other person; or

(iii) the employees or agents of the client; or

(b) the contents of a document (whether delivered or not),

that was made or prepared for the dominant purpose of providing or receiving professional legal services in relation to a legal or administrative proceeding, or an anticipated or pending administrative or legal proceeding, in which the client is or may be a party, the court shall direct that the evidence not be adduced.

(3) Where, on objection by a party who is not represented in the proceeding by a legal practitioner, the court finds that the adducing of evidence will involve the disclosure of -

(a) a confidential communication made between that party and some other person; or

(b) the contents of a document (whether delivered or not) that has been prepared by that party or at the direction or request of the party,

for the dominant purpose of preparing for or conducting the proceeding, the court shall direct that the evidence not be adduced.

Loss of client legal privilege

107. (1) Section 106 does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Section 106 does not prevent the adducing of evidence relevant to a question concerning the intentions or competence in law of a client or party who has died.

(3) Where, if the evidence were not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented from enforcing an order of a court, including a court of a State or Territory, section 106 does not prevent the adducing of the evidence.

(4) In a criminal proceeding, section 106 does not prevent a defendant from adducing evidence other than evidence of -

(a) a confidential communication between a person who is being prosecuted for a related offence and a legal practitioner acting for that person in connection with that prosecution; or

(b) the contents of a document prepared by a person who is being prosecuted for a related offence or by a legal practitioner acting for that person in connection with that prosecution.

(5) Section 106 does not prevent the adducing of evidence of the making of a communication or document that affects the right of a person.

(6) Where a client or party has voluntarily disclosed the substance of evidence, not being a disclosure made -

(a) in the course of the making of the confidential communication or the preperation of the confidential document;

(b) as a result of duress or deception; or

section 106 does not prevent the adducing of the evidence.

(7) Where the communication or document was disclosed by a person who was, at the time, an employee or agent of a client or a legal practitioner, subsection (6) does not apply unless the employee or agent was authorised to make the disclosure.

(8) Where a confidential communication is contained in a document and a witness has used the document as mentioned in subsection 36(1), section 106 does not prevent the adducing of evidence of the document.

(9) Where the substance of evidence has been disclosed with the express or implied consent of the client or party, section 106 does not prevent the adducing of the evidence.

(10) A disclosure by a client of a legal practitioner to a person who is a client of the same legal practitioner shall not be taken to be disclosure for the purposes of subsection (9) if the disclosure concerns a matter in relation to which the legal practitioner is providing or is to provide professional legal services to both of them.

(11) Where, in relation to a proceeding in connection with a matter, 2 or more of the parties have, before the commencement of the proceeding, jointly retained a legal practitioner in relation to the matter, section 106 does not prevent one of those parties who retained the legal practitioner adducing of evidence of -

(a) a communication made by any one of them to the legal practitioner; or

(b) a document prepared by any one of them,

in connection with that matter.

(12) Section 106 does not prevent the adducing of evidence of -

(a) a communication made or a document prepared in furtherance of the commission of -

(i) a fraud;

(ii) an offence; or

(iii) an act that renders a person liable to a civil penalty; or

(b) a communication or a document that the client knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power conferred by or under an enactment, a State Act or an Imperial Act in force in a State.

(13) For the purposes of subsection (12), where -

(a) the commission of the fraud, the offence or act, or the abuse of power, is a fact in issue; and

(b) there are reasonable grounds for finding that -

(i) the fraud, offence or act or the abuse of power, was committed; and

(ii) the communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power,

the court may find that the communication was so made or the document so prepared, respectively.

(14) Where, by virtue of one of the preceding provisions of this section, section 106 does not prevent the adducing of evidence of a communication, that section does not prevent the adducing of evidence of a communication that is reasonably necessary to enable a proper understanding of the first-mentioned communication.

Interpretation

108. In this Subdivision, unless the contrary intention appears -

"client"and "party"include -

(a) an employee or agent of a client or party;

(b) if the client or party is a person in respect of whose person, estate or property a manager or committee or other person (however described) is for the time being acting under a law of a State or Territory that relates to persons of unsound mind - a person so acting; and

and, in relation to a confidential communication made by a client or party in respect of property in which the client or party had an interest, also includes a successor in title to that interest;

"legal practitioner"includes an employee or agent of a legal practitioner.

Subdivision B - Other privileges

Privilege in respect of confidential communications and records

109. (1) Where, on the application of a person who is an interested person in relation to a confidential communication or a confidential record, the court finds that, if evidence of the communication or record were to be adduced in the proceeding, the likelihood of -

(a) harm to an interested person;

(b) harm to the relationship in the course of which the confidential communication was made or the confidential record prepared; or

(c) harm to relationships of the kind concerned, together with the extent of that harm, outweigh the desirability of admitting the evidence, the court may direct that the evidence not be adduced.

(2) For the purposes of subsection (1), the matters that the court shall take into account include -

(a) the importance of the evidence in the proceeding;

(b) if the proceeding is a criminal proceeding - whether the evidence is adduced by the defendant or by the prosecutor;

(d) whether an interested person has consented to the evidence being adduced;

(e) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(f) any means available to limit publication of the evidence.

(3) Subsection (1) does not apply to a communication or document -

(a) the making of which affects a right of a person;

(b) that was made or prepared in furtherance of the commission of -

(i) a fraud;

(ii) an offence; or

(iii) an act that renders a person liable to a civil penalty; or

(c) that an interested person knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power conferred by or under an enactment, a State ,Act or an Imperial Act in force in a State.

(4) For the purposes of subsection (3), where -

(a) the commission of the fraud, offence or act, or the abuse of power, is a fact in issue; and

(b) there are reasonable grounds for finding that -

(i) the fraud, offence or act, or the abuse of power, was committed; and

(ii) the communication was made or document prepared in furtherance of the commission of the fraud, offence or act or for that purpose,

the court may find that the communication was so made or the document so prepared, respectively.

(5) In this section, "interested person", in relation to a confidential communication or a confidential record, means a person by whom, to whom, about whom or on whose behalf the communication was made or the record prepare&

Privilege In respect of self-incrimination in other proceedings

110. (1) Where a witness objects to giving evidence on the ground that the evidence may tend to prove that the witness -

(a) has committed an offence against or arising under a law of or in force in the Commonwealth, a State or a Territory or the law of a foreign country; or

(b) is liable to a civil penalty,

the court shall, if there are reasonable grounds for the objection, inform the witness -

(c) that he or she need not give the evidence but that, if he or she gives the evidence, the court will give a certificate under this section; and

(d) of the effect of the certificate.

(2) If the witness declines to give the evidence, the court shall not require the witness to give it but, if the witness gives the evidence, the court shall cause the witness to be given a certificate under this section in respect of the evidence.

(3) Where -

(a) the objection has been overruled; and

(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection,

the court shall cause the witness to be given such a certificate.

(4) Evidence in respect of which a certificate under this section has been given is not admissible against the person to whom the certificate was given in any legal or administrative proceeding, not being a criminal proceeding in respect of the falsity of the evidence.

(5) In a criminal proceeding, the preceding provisions of this section do not apply in relation to evidence that a defendant -

(a) did an act the doing of which is a fact in issue; or

(b) had a state of mind the existence of which is a fact in issue.

Subdivision C - Evidence excluded in the public interest

Exclusion of evidence of reasons for judicial, &c., decisions

111. (1) Evidence of the reasons for a decision made by a person -

(a) acting as judge, magistrate or like officer in a legal or administrative proceeding; or

(b) acting as an arbitrator in respect of a dispute that has been submitted to the person, or to the person and one or more other persons, for arbitration,

or the deliberations of a person so acting in relation to such a decision, may not be given by that person, or by a person who was under the direction or control of that person, in a proceeding to which this Act applies that is not the legal or administrative proceeding concerned.

(2) Subsection (1) does not prevent the admission or use, in a legal or administrative proceeding, of published reasons for a decision.

(3) Evidence of the reasons for a decision made by a member of a jury in a legal or administrative proceeding, or of the deliberations of a member of a jury in relation to such a decision, may not be given by any of the members of that jury in a proceeding to which this Act applies that is not the legal or administrative proceeding concerned.

(4) Subsections (1) and (3) do not apply in a proceeding that is -

(a) a prosecution for one of more of the following offences:

(i) an offence against or arising under section 36A, 37, 38, 39, 42, 43 or 44 of the Crimes Act 1914;

(ii) embracery;

(iii) attempting to pervert the course of justice;

(iv) an offence connected with an offence mentioned in subparagraph (i), (ii) or (iii), including an offence of conspiring to commit such an offence,

(b) in respect of a contempt of a court; or

Exclusion of evidence of matters of state

112. (1) Where the public interest in admitting evidence that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the evidence, the court may, either of its own motion or on the application of any person (whether or not a party), direct that the evidence not be adduced.

(2) For the purposes of subsection (1), evidence that relates to matters of state includes evidence -

(a) that relates to -

(i) the security or defence of Australia;

(ii) international relations or to relations between the Commonwealth and a State or relations between 2 or more States; or

(iii) the prevention or detection of offences or contraventions of the law; or

(b) which, if adduced -

(i) would disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of a law, including a law of a State; or

(ii) would tend to prejudice the proper functioning of government, including the government of a State.

(3) For the purposes of subsection (1), the matters that the court shall take into account include -

(a) the importance of the evidence in the proceeding;

(b) if the proceeding is a criminal proceeding - whether the evidence is adduced by the defendant or by the prosecutor;

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding;

(d) the likely effect of the evidence being adduced and the means available to limit its publication; and

(e) whether the substance of the evidence has already been published.

(4) For the purposes of subsection (1), the court may inform itself in any manner the court thinks fit.

(5) A reference in this section to a State includes a reference to a Territory.

Exclusion of evidence of settlement negotiations

113. (1) Evidence may not be adduced of -

(a) a communication made -

(i) between persons in dispute; or

(ii) between one or more persons in dispute and a third party, being a communication made in connection with an attempt to negotiate a settlement of the dispute; or

(b) a document that has been prepared in connection with an attempt to negotiate a settlement of a dispute, whether or not the document has been delivered.

(2) Subsection (1) does not apply where -

(a) the persons in dispute consent to the the evidence being adduced or, if one of those persons has tendered the communication or document in evidence in some other administrative or legal proceeding, all the other persons so consent;

(b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute;

(i) began an attempt to settle the dispute; and

(ii) included a statement to the effect that it was not to be treated as confidential;

(d) the communication or document relates to an issue in dispute and the dispute, so far as it relates to that issue, has been settled;

(e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute;

(f) the making of the communication, or the preparation of the document, affects a right of a person; or

(g) the communication was made, or the document prepared, in furtherance of the commission of -

(i) a fraud;

(ii) an offence; or

(iii) an act that renders a person liable to a civil penalty; or

(h) a party to the dispute knew or ought reasonably to have known that the communication was made, or the document prepared, in furtherance of a deliberate abuse of a power conferred by or under an enactment, a State Act or an Imperial Act in force in a State.

(3) For the purposes of paragraph (2)(g), where -

(a) the commission of the fraud, offence or act is a fact in issue; and

(b) there are reasonable grounds for finding that -

(i) the fraud, offence or act was committed; and

(ii) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act,

the court may find that the communication was so made or the document so prepared.

(4) For the purposes of paragraph (2)(h), where -

(a) the abuse of power is a fact in issue; and

(b) there are reasonable grounds for finding that a communication was made or document prepared in furtherance of that abuse,

the court may find that the communication was so made or the document so prepared.

(5) A reference in this section to -

(a) a dispute is a reference to a dispute of a kind in respect of which relief may be given in a legal or administrative proceeding;

(b) an attempt to negotiate the settlement of a dispute does not include a reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding; and

Subdivision D - General

Court to Inform of rights, &c.

114. Where it appears to the court that a witness or a party may have grounds for making an application or objection under one of the preceding provisions of this Division, the court shall satisfy itself (if there is a jury, in the absence of the jury), that the witness or party is aware of the effect of that provision.

Court may inspect, &c., documents

115. Where a question arises under this Division in relation to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.

Certain evidence inadmissible

116. Evidence that, by or under a provision of this Division, may not be adduced or given in a proceeding is not admissible in the proceeding.

Division 9 - Discretions to exclude evidence

General discretion to exclude

117. Where the probative value of evidence is substantially outweighed by the danger of unfair prejudice or confusion or the danger that the evidence might mislead or cause or result in undue waste of time, the court may refuse to admit the evidence.

Criminal proceedings: discretion to exclude prejudicial evidence

118. In a criminal proceeding, where the probative value of evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, the court may refuse to admit the evidence.

Discretion to exclude improperly obtained evidence

119. (1) Evidence that was obtained -

(a) improperly or in contravention of a law; or

(b) in consequence of an impropriety or of a contravention of a law,

shall not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained.

(2) Without limiting subsection (1), where -

(a) an admission was made during or in consequence of questioning; and

(b) the person conducting the questioning knew or ought reasonably to have known that -

(i) the doing or omission of an act was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(ii) the making of a false statement was likely to cause the person who was being questioned to make an admission,

but nevertheless, in the course of that questioning, the person conducting the questioning did or omitted to do the act or made the false statement, evidence of the admission, and evidence obtained in consequence of the admission, shall be taken to have been obtained improperly.

(3) For the purposes of subsection (1), the matters that the court shall take into account include -

(a) the probative value of the evidence;

(b) the importance of the evidence in the proceeding;

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding;

(d) the gravity of the impropriety or contravention;

(e) whether the impropriety or contravention was deliberate or reckless;

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention;

(h) the difficulty, if any, of obtaining the evidence without impropriety or contravention of law.

PART VI - OTHER ASPECTS OF PROOF

Division I - Judicial notice

Matters of law

120. (1) Proof shall not be required about matters of law, including the provisions and coming into operation, in whole or in part, of -

(a) an Act, an Imperial Act, a State Act or an Act or Ordinance of a Territory;

(b) an instrument of a legislative character (including regulations, statutory rules and by-laws) made or issued under or by authority of such an Act or Ordinance, being an instrument -

(i) that is required by or under an enactment to be published in a government or official gazette (by whatever name called); or

(ii) the making or issuing of which is so required to be notified in a government or official gazette (by whatever name called).

(2) The Judge may inform himself or herself about those matters in any manner that the Judge thinks fit.

Matters of common knowledge, &c.

121. (1) Proof shall not be required about knowledge that is not reasonably open to question and is -

(a) common knowledge in the locality in which the proceeding is being held or generally; or

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2) The Judge may acquire knowledge of that kind in any manner that the Judge thinks fit.

(3) The court (if there is a jury, including the jury) shall take knowledge of that kind into account.

(4) The Judge shall give a party such opportunity to make submissions, and to refer to relevant information, in relation to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

Certain Crown certificates

122. This Division does not exclude the application of the principles and rules of the common law and of equity relating to the effect of a certificate given by or on behalf of the Crown with respect to a matter of international affairs.

Division 2 - Documents

Interpretation

123. (1) A reference in this Division to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence.

(2) For the purposes of this Division, where a document is not an exact copy of the document in question but is identical to the document in question in all relevant respects, it may be taken to be a copy of the document in question.

"Best evidence"rule abolished

124. The principles and rules of the common law that relate to the mode of proof of the contents of documents are abolished.

Proof of contents of documents

125. (1) A party may adduce evidence of the contents of a document in question by tendering the document in question or -

(a) by adducing evidence of an admission made by some other party to the proceeding as to the contents of the document in question;

(b) by tendering a document that -

(i) is or purports to be a copy of the document in question; and

(ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents;

(c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing) - by tendering a document that is or purports to be a transcript of the words,

(d) if the document in question is an article or thing on or in which information is stored in such a manner that it cannot be used by the court unless a device is used to retrieve, produce or collate, it - by tendering a document that was or purports to have been produced by use of the device;

(e) by tendering a document that -

(i) forms part of the records of or kept by a business (whether or not the business is still in existence); and

(ii) purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such a document; or

(f) if the document in question is a public document - by tendering a document that was or purports to have been printed -

(i) by the Government Printer or by the government or official printer of a State or Territory; or

(ii) by the authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country, and is or purports to be a copy of the document in question.

(2) Subsection (1) applies in relation to a document in question, whether the document in question is available to the party or not.

(3) A party may adduce evidence of the contents of a document in question that is unavailable -

(a) by tendering a document that is a copy of, or a faithful extract from or summary of, the document in question, or

(b) by adducing oral evidence of the contents of the document in question.

Documents in foreign countries

126. Where the document in question is in a foreign country, paragraph 125(1)(b), (c), (d), (e) or (f) does not apply unless -

(a) the party who adduces evidence of the contents of the document in question has, not less than 14 days before the day on which the evidence is adduced, served on each other party a copy of the document proposed to be tendered; or

(b) the court directs that it is to apply.

Division 3 - Facilitation of proof

Evidence produced by machines, processes, &c.

127. (1) This section applies in relation to a document or thing produced wholly or partly by a device or process.

(2) Where it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily does what the party tendering the document or thing asserts it to have done, it shall be presumed, unless the contrary is proved, that, in producing the document or thing on the occasion in question, the device or process did what that party asserts it to have done.

(3) In the case of a document that is, or was at the time it was produced, part of the records of, or kept for the purposes of, a business (whether or not the business is still in existence), then, where the device or process is or was at that time used for the purposes of the business, it shall be presumed, unless the contrary is proved, that on the occasion in question the device or process did what the party adducing the evidence asserts it to have done.

(4) Subsection (3) does not apply in relation to the contents of a document that was produced for the purposes of, or for purposes that included the purposes of, a legal or administrative proceeding.

Attestation of documents

128. It is not necessary to adduce the evidence of an attesting witness to a document (not being a testamentary document) to prove that the document was signed or attested as it purports to have been signed or attested.

Gazettes, &c.

129. (1) It shall be presumed, unless the contrary is proved, that a document purporting-

(a) to be the Gazette;

(b) to be a government or official gazette (by whatever name called) of a State or Territory; or

(c) to have been printed by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country,

is what it purports to be and was published on the day on which it purports to have been published.

(2) Where there is produced to a court -

(a) a copy of the Gazette;

(b) a copy of a government or official gazette (by whatever name called) of a State or Territory; or

(c) a document that purports to have been printed by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country,

being a copy or document in which the doing of an act -

(d) by the Governor-General or by the Governor of a State or the Administrator of a Territory; or

(e) by a person authorised or empowered by law to do the act,

is notified or published, it shall be presumed, unless the contrary is proved, that the act was duly done and, if the date on which the act was done appears in the copy or document, that it was done on that date.

Seals and signatures

130. (1) Where the imprint of a seal appears on a document and purports to be the imprint of -

(a) a Royal Great Seal;

(b) the Great Seal of Australia;

(d) a seal of a State, a Territory or a foreign country; or

(e) the seal of a body (including a court or a tribunal), or a body corporate established by or under Royal Charter or the law of the Commonwealth, a State, a Territory or a foreign country,

it shall be presumed, unless the contrary is proved, that -

(f) the imprint is the imprint of the seal of which it purports to be the imprint; and

(g) the document was duly sealed as it purports to have been sealed.

(2) Where the imprint of a seal appears on a document and purports to be the imprint of the seal of -

(a) the Sovereign, the Governor-General or the Governor of a State; or

(b) a person holding office under the Constitution or an Imperial Act or the law of the Commonwealth, a State, a Territory or a foreign country,

it shall be presumed, unless the contrary is proved, that -

(d) the document was duly sealed by the person purporting to seal it acting in his or her official capacity.

(3) Where a document purports to have been signed by a person referred to in paragraph(2)(a) or (b), it shall be presumed, unless the contrary is proved, that the document was duly signed by that person acting in his or her official capacity.

Public documents

131. A document that purports -

(a) to be a copy of, or a faithful extract from or summary of, a public document; and

(b) to have been -

(i) sealed with the seal of a person who, or of a body that; or

(ii) certified as such a copy, extract or summary by a person who, might reasonably be supposed to have the custody of the public document,

shall be presumed, unless the contrary is proved, to be a copy of the public document, or a faithful extract from or summary of, the public document, respectively.

Documents produced from proper custody

132. Where a document that is or purports to be more than 20 years old is produced from proper custody, it shall be presumed, unless the contrary is proved, that the document is the document that it purports to be and, where it purports to have been executed or attested by a person, that it was duly executed or attested by that person.

Labels, &c.

133. Where -

(a) a document has been attached to an object or writing has been placed on a document or object;

(b) the document or writing so attached or placed may reasonably be supposed to have been so attached or placed in the course of a business,

it shall be presumed, unless the contrary is proved, that the ownership or the origin of the object or document is as stated in the document or writing.

Posts and telecommunications

134. (1) It shall be presumed, unless the contrary is proved, that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth day after having been posted.

(2) Where a message has been -

(a) sent by means of a telecommunications installation; or

(b) delivered to an office of the Australian Telecommunications Commission for transmission by the Commission and any fee payable in respect of that transmission has been paid,

it shall be presumed, unless the contrary is proved, that the message was received by the person to whom it was addressed 24 hours after been sent or delivered, respectively.

(3) Where a document that has been -

(a) received from the Australian Telecommunications Commission; or

(b) produced by a telecommunications installation,

purports to contain a record of a message transmitted by means of a telecommunications service, it shall be presumed, unless the contrary is proved, that the message -

(d) was sent by the person from whom or on whose behalf it purports to have been sent on the date on which and at the time at which, and from the place from which, it purports to have been sent.

(4) In this section, "postal article" has the meaning it has under the Postal Services Act 1975.

Official statistics

135. Where a document purports to have been published by or on behalf of, or by arrangement with, the Australian Bureau of Statistics or the Australian Statistician, it shall be presumed, unless the contrary is proved, that the statistics contained in it were derived by the Bureau or by the Australian Statistician, as the case may be, from information obtained by the Bureau or by the Australian Statistician, respectively.

Division 4 - Standard of proof

Civil proceedings: standard of proof

136. (1) In a civil proceeding, a court shall find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) In determining whether it is satisfied as mentioned in subsection (1), the matters that the court shall take into account include the nature of the cause of action or defence, the nature of the subject-matter of the proceeding and the gravity of the matters alleged.

Criminal proceedings: standards of proof

137. (1) In a criminal proceeding, the court shall not find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.

(2) In a criminal proceeding, the court shall find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities.

Admissibility of evidence: standard of proof

138. (1) Except as otherwise provided by this Act, in any proceeding the court shall find that the facts necessary for determining -

(a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or

(b) any other question arising under this Act, have been proved if it is satisfied that they have been proved on the balance of probabilities.

(2) In determining whether it is satisfied as mentioned in subsection (1), the matters that the court shall take into account include the importance of the evidence in the proceedings.

Division 5 - Corroboration

Corroboration requirements abolished

139. (1) It is not necessary that evidence on which a party relies be corroborated.

(2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a like or related offence.

(3) Notwithstanding any rule, whether of law or of practice, to the contrary, but subject to the other provisions of this Act, where there is a jury, it is not necessary that the Judge -

(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or like effect; or

(b) give a direction relating to the absence of corroboration.

Division 6 - Warnings

Unreliable evidence

140. (1) This section applies in relation to the following kinds of

evidence:

(a) evidence in relation to which Division I or 3 of Part V applies;

(b) identification evidence;

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;

(d) in a criminal proceeding -

(i) evidence given by a witness called by the prosecutor, being a person who might reasonably be supposed to have been concerned in the events giving rise to the proceeding; or

(ii) oral evidence of official questioning of a defendant, where the questioning is recorded in writing that has not been signed or otherwise acknowledged in writing by the defendant;

(e) in the case of a prosecution for an offence of a sexual nature evidence given by a victim of the alleged offence;

(f) in the case of a proceeding against the estate of a deceased person - evidence adduced by or on behalf of a person seeking relief in the proceeding, being evidence about a matter about which the deceased person could, if he or she were alive, have given evidence.

(2) Where there is a jury and a party so requests, the Judge shall, unless there are good reasons for not doing so -

(a) warn the jury that the evidence may be unreliable;

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) It is not necessary that a particular form of words be used in giving the warning or information.

(4) This section does not affect any other power of the Judge to give a warning to, or to inform, the jury.

PART VII - MISCELLANEOUS

Inferences

141. Where a question arises as to the application of a provision of this Act in relation to a document or thing, the court may -

(a) examine it; and

(b) draw any reasonable inference from it as well as from other matters from which inferences may properly be drawn.

Proof of certain matters by affidavit, &c.

142. (1) Evidence of a fact that, by virtue of section 56, 57, 58, 61, 62 or 63 or of a provision of Division 2 or 3 of Part VI, is to be proved in relation to a document or thing may be given by a person who, at the relevant time or at some later time, had a position of responsibility in relation to the making or keeping of the document or thing.

(2) Notwithstanding Part V, the evidence may include evidence based on the knowledge and belief of the person who gives it or on information that that person has.

(3) The evidence may be given by affidavit or, in the case of evidence that relates to a public document, by a statement in writing.

(4) An affidavit or statement that includes evidence based on knowledge, information or belief shall set out the source of the knowledge or information or the basis of the belief.

(5) A copy of the affidavit or statement shall be served on each party a reasonable time before the hearing of the proceeding.

(6) The party who tenders the affidavit or statement shall, if some other party so requests, call the deponent or person who made the statement to give evidence but need not otherwise do so.

Request to produce documents or call witnesses

143. (1) In this section, "request" means a request given by a party to some other party to do one or more of the following:

(a) to produce to the first-mentioned party or to permit that party, adequately and in an appropriate manner, to examine, test or copy the whole or a part of a specified document or thing;

(b) to call as a witness a specified person believed to be concerned in the production or maintenance of a specified document or thing or a specified person in whose possession a document or thing is believed to be or to have been at any time;

(c) in relation to a document of the kind referred to in paragraph (c) of the definition of "document" in section 3 - to permit the first-mentioned party, adequately and in an appropriate manner, to examine and test the document and the way in which it was produced and has been kept;

(d) in relation to evidence of a previous representation - to call as a witness the person who made the previous representation;

(e) in relation to evidence that a person has been convicted of an offence, being evidence to which subsection 81(2) applies - to call as a witness a person who gave evidence in the proceeding in which the person was so convicted.

(2) Where, for the purpose of determining a question that relates to -

(a) a previous representation;

(b) evidence of a conviction of a person for an offence; or

a party has given a reasonable request to some other party and that other party has, without reasonable cause, failed or refused to comply with the request, the court may make one or more of the following orders:

(d) an order directing the other party to comply with the request;

(e) an order that the other party produce a specified document or thing, or call as a witness a specified person, as mentioned in subsection (1);

(f) such order with respect to adjournments or costs as is just, or may refuse to admit the evidence in relation to which the request was made.

(3) Where the party who has failed to comply with a request proves that the document or thing to be produced or the person to be called is unavailable, it is reasonable cause to fail to comply with the request.

(4) In relation to the exercise of a power under subsection(2), the matters that the court shall take into account include -

(a) the importance in the proceeding of the evidence in relation to which the request was made;

(b) whether there is a genuine dispute in relation to the matter to which the evidence relates;

(c) whether there is a reasonable doubt as to the authenticity or accuracy of the evidence or of the document the contents of which are sought to be proved;

(d) whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered;

(e) in the case of a request in relation to evidence of a previous representation - whether there is a reasonable doubt as to the accuracy of the representation or of the information on which it was based;

(f) in the case of a request as mentioned in paragraph (1)(e) whether some other person is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained;

(g) whether compliance with the request would involve undue expense or delay or would not be reasonably practicable; and

(h) the nature of the proceeding.

Views, &c.

144. (1) The Judge may, on application, order that a demonstration, experiment or inspection be held.

(2) A Judge shall not make an order under subsection (1) unless he or she is satisfied that-

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

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

(3) In determining whether to make an order under subsection (1), the matters that the Judge shall take into account include whether the parties will be present, the matters referred to in section 117 and -

(a) in the case of a demonstration - the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated; and

(b) in the case of an inspection - the extent to which the place or thing to be inspected has materially altered.

(4) The court (including, if there is a jury, the jury) may not itself conduct an experiment in the course of its deliberations.

(5) The preceeding provisions of this section do not apply in relation to the inspection of an exhibit by the court or by the jury.

Views, &c., to be evidence

145. Subject to this Act, the court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.

The voir dire

146. (1) Where the determination of a question whether -

(a) evidence should be admitted (whether in the exercise of a discretion or not); or

(b) a witness is competent or compellable,

depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question.

(2) Where there is a jury, a preliminary question whether evidence of an admission, or evidence to which section 119 applies, should be admitted shall be heard and determined in the absence of the jury.

(3) Where there is a jury, the jury shall not be present at a hearing to determine any other preliminary question unless the court so orders.

(4) In determining whether to make an order as mentioned in subsection (3), the matters that the court shall take into account include -

(a) whether the evidence concerned will be adduced in the course of the hearing to determine the preliminary question; and

(b) whether the evidence to be adduced in the course of that hearing would be admitted if adduced at some other stage of the hearing of the proceeding (other than in some other hearing to determine a preliminary question or, in a criminal proceeding, in relation to sentencing).

(5) Subsection 110(5) does not apply in a hearing to determine a preliminary question.

(6) In the application of Parts IV and V in a hearing to determine a preliminary question, the facts in issue shall be taken to include the fact to which the hearing relates.

(7) Where there is a jury and the jury is not present at a hearing to determine a preliminary question, evidence shall not be adduced otherwise in the proceeding about evidence that a witness gave in that hearing unless that evidence is inconsistent with evidence otherwise given by the witness in the proceeding.

(8) Notwithstanding subsection 27(2), a defendant who gives sworn evidence in a hearing to determine a preliminary question is not thereby precluded from giving unsworn evidence otherwise in the proceeding,

Waiver of rules of evidence

147. (1) The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of -

(a) Division 3 of Part 111;

(b) Divisions I to 6 (inclusive) of Part V; or

in relation to particular evidence or generally.

(2) In a criminal proceeding, the consent of a defendant is not effective for the purposes of subsection (1) unless -

(a) the defendant is represented by a legal practitioner; or

(b) the court is satisfied that the defendant understands the consequences of giving the consent.

(3) In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if -

(a) the matter to which the evidence relates is not genuinely in dispute; or

(b) the application of those provisions would cause or involve unnecessary expense or delay.

(4) In determining whether to exercise the power conferred by subsection (3), the matters that the court shall take into account include -

(a) the importance of the evidence in the proceeding;

(b) the nature of the cause of action or defence and the nature of the subject-matter of the proceeding;

(d) the powers of the court, if any, to adjourn the hearing, to make some other order or to give a direction in relation to the evidence.

Leave, &c., may be given on terms

148. (1) Where, by virtue of a provision of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) In determining whether to give the leave, permission or direction, the matters that the court shall take into account include -

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing;

(b) the extent to which to do so would be unfair to a party or to a witness;

(d) the nature of the proceeding; and

(e) the powers, if any, of the court to adjourn the hearing or to make some other order or to give a direction in relation to the evidence.

Additional powers

149. (1) The powers of a court in relation to the discovery or inspection of documents extend to enabling the court to make such orders as the court thinks fit (including orders as to methods of inspection, adjournments and costs) to ensure that the parties to a proceeding can adequately, and in an appropriate manner, inspect documents of the kind referred to in paragraph (c) of the definition of "document" in section 3.

(2) The power of a person or body to make rules of court in relation to the High Court, another federal court or a court of a Territory other than the Northern Territory extends to making rules for or with respect to the discovery of reports of persons intended to be called by a party to give evidence in a proceeding to which this Act applies.

(3) Without limiting subsection (2), rules made under that subsection may provide for the exclusion of evidence if the rules are not complied with, or for its admission on specified terms.

Conferral of jurisdiction

150. Jurisdiction is conferred on the several federal courts and, so far as the Constitution permits, on the courts of the Territories, in respect of matters arising in that court under this Act or under the regulations.

Regulations

151. The Governor-General may make regulations, not inconsistent with this Act, prescribing matters -

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed,

for carrying out or giving effect to this Act.

SCHEDULE

Subsection 26(1)

Oaths by witnesses

I swear by Almighty God (or the person to be sworn may name a god recognized by his or her religion) that the evidence I shall give will be the truth, the whole truth and nothing but the truth.

Oaths by interpreters

I swear by Almighty God (or the person to be sworn may name a god recognized by his or her religion) that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability.

Affirmations by witnesses

I solemnly and sincerely declare and affirm that the evidence I shall give will be the truth, the whole truth and nothing but the truth.

Affirmations by interpreters

I solemnly and sincerely declare and affirm that I will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability.

Evidence (consequential amendments) Bill 1987

TABLE OF PROVISIONS

Clause

PART I - PRELIMINARY
1.	Short title
2.	Commencement
3.	Transitional
4.	Amendment or repeal of Ordinances
PART II - AMENDMENTS OF THE AUSTRALIAN CAPITAL TERRITORY SUPREME COURT ACT 1933
5.	Principal Act
6.	Repeal of section 50
PART III - AMENDMENTS OF THE EVIDENCE ACT 1905
7.	Principal Act
8.	Title
9.	Short title
10.	Repeal of Part IIIA
PART IV - AMENDMENT OF THE FAMILY LAW ACT 1975
11	Principal Act
12.	Offensive or scandalous questions
PART V - AMENDMENT OF THE FEDERAL COURT OF AUSTRALIA ACT 1976
13.	Principal Act
14.	Oaths and affirmations
PART VI - AMENDMENT OF THE JUDICIARY ACT 1903
15.	Principal Act
16.	Oaths and affirmations
PART VII - AMENDMENT OF THE CRIMES ACT, 1900 (NSW) IN ITS APPLICATION IN THE AUSTRALIAN CAPITAL TERRITORY
17.	Principal Act
18.	Repeat of section 405
PART VIII - AMENDMENTS OF THE EVIDENCE ORDINANCE 1971 (ACT)
19.	Principal Ordinance
20.	Title
21.	Short title
22.	Repeals
23.	Competence and compellability, of certain witnesses
24.	Repeals
25.	Limitation on unsworn evidence
26.	Repeat of sections 77, 79, 80, 86, 87 and 89
27.	Certified copy of transcript of Supreme Court proceedings
28.	Repeal of sections 92 and 93
29.	Fingerprints
30.	Repeal of sections 95 and 96
PART IX - AMENDMENT OF THE MAGISTRATES COURT ORDINANCE 1930 (ACT)
31.	Principal Ordinance
32.	Conduct of use
33.	Repeal of sections 55, 57 and 58
PART X - AMENDMENT OF THE OATHS AND AFFIRMATIONS ORDINANCE 1984 (ACT)
34.	Principal Ordinance
35.	Insertion of new section -
5A.	Ordinance to be subject to Evidence Act
PART XI - AMENDMENT OF THE CRIMINAL PROCEDURE CODE (SINGAPORE) IN ITS APPLICATION IN CHRISTMAS ISLAND AND THE COCOS (KEELING) ISLANDS
36.	Principal Ordinance
37.	Statements to police
38.	Power to record statements and confessions
39.	Defence of accused
40.	Procedure in summary trials
41.	Repeal of section 193
973>42.	Accused or advocate may open case and examine witnesses
43.	Repeal of sections 198, 199, 351 and 352
973>44.	Repeal of section 121A
PART XII - AMENDMENT OF THE EVIDENCE ORDINANCE (SINGAPORE) IN ITS APPLICATION IN CHRISTMAS ISLAND AND THE COCOS (KEELING) ISLANDS
45.	Principal Ordinance
46.	Repeals
PART XIII - AMENDMENT OF THE OATHS ORDINANCE (SINGAPORE) IN ITS APPLICATION IN CHRISTMAS ISLAND AND THE COCOS (KEELING) ISLANDS
47.	Principal Ordinance
48.	Insertion of new section -
2A.	Ordinance to be subject to Evidence Act
PART XIV - AMENDMENT OF THE SUPREME COURT ORDINANCE 1958 (CHRISTMAS ISLAND)
49.	Principal Ordinance
50.	Evidence, practice and procedure
PART XV - AMENDMENTS OF THE SUPREME COURT ORDINANCE 1955 (COCOS (KEELING) ISLANDS)
51.	Principal Ordinance
52.	Evidence, practice and procedure

A Bill for An Act to amend certain laws relating to evidence in consequence of the enactment of the Evidence Act 1987

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

PART I - PRELIMINARY

Short title

1. This Act may be cited as the Evidence (Consequential Amendments) Act 1987.

Commencement

2. This Act shall come into operation immediately after the commencement of the Evidence Act 1987.

Transitional

3. An amendment made by this this Act does not apply to or in relation to a proceeding in a court the hearing of which commenced before the commencement of this Act, and such a proceeding may be continued or completed as if this Act had not been passed.

Amendment or repeal of Ordinances, &c.

4. The amendment of a law by a provision of Part VII to XV (inclusive) does not prevent the amendment or repeal, by a law other than an Act, of that law as amended by that provision.

PART II - AMENDMENTS OF THE AUSTRALIAN CAPITAL TERRITORY SUPREME COURT ACT 1933

Principal Act

5. The Australian Capital Territory Supreme Court Act 1933 is in this Part referred to as the Principal Act.

Repeal of section 50

6. Section 50 of the Principal Act is repealed.

PART III - AMENDMENTS OF THE EVIDENCE ACT 1905

Principal Act

7. The Evidence Act 1905 is in this Part referred to as the Principal Act.

Title

8. The Principal Act is amended by omitting the title and substituting the following title:

"An Act to make certain miscellaneous provisions relating to evidence'.

Short title

9. Section I1of the Principal Act is amended by inserting "(Miscellaneous Provisions)" after "Evidence".

Repeal of Part IIIA

10. Part IIIA of the Principal Act is repealed.

PART IV - AMENDMENT OF THE FAMILY LAW ACT 1975

Principal Act

11. The Family Law Act 1975 is in this Part referred to as the Principal Act.

Offensive or scandalous questions

12. Section 101 of the Principal Act is amended by adding at the end the following subsection:

"(2) Subsection (1) does not apply to the Family Court of Australia.".

PART V - AMENDMENT OF THE FEDERAL COURT OF AUSTRALIA ACT 1976

Principal Act

13. The Federal Court of Australia Act 1976 is in this Part referred to as the Principal Act.

Oaths and affirmations

14. Section 44 of the Principal Act is amended by omitting subsections (2) and (3).

PART VI - AMENDMENT OF THE JUDICIARY ACT 1903

Principal Act

15. The Judiciary Act 1903 is in this Part referred to as the Principal Act.

Oaths and affirmations

16. Section 77F of the Principal Act is amended by omitting subsections (2) and (4).

PART VII - AMENDMENT OF THE CRIMES ACT, 1900 (NSW) IN ITS APPLICATION IN THE AUSTRALIAN CAPITAL TERRITORY

Principal Act

17. The Crimes Act, 1900 of the State of New South Wales in its application in the Australian Capital Territory is in this Part referred to as the Principal Act,

Repeal of section 405

18. Section 405 of the Principal Act is repealed.

PART VIII - AMENDMENTS OF THE EVIDENCE ORDINANCE 1971 (ACT)

Principal Ordinance

19. The Evidence Ordinance 1971 is in this Part referred to as the Principal Ordinance.

Title

20. The title of the Principal Ordinance is amended by omitting "Evidence" and substituting "certain matters of evidence and procedure".

Short title

21. Section 1 of the Principal Ordinance is amended by inserting "and Procedure (Miscellaneous Provisions) "after "Evidence".

Repeals

22. (1) Section 4, Parts II, III, IV, V, VI, VII and VIII and sections 53 to 65 (inclusive) of the Principal Ordinance are repealed.

(2) The repeal of section 57 of the Principal Ordinance effected by subsection (1) does not affect the continuing operation of a certificate under that section given before the commencement of this Act.

Competence and compellability of certain witnesses

23. Section 66 of the Principal Ordinance is amended by omitting subsections (1) and (2).

Repeals

24. Sections 68 to 71 (inclusive), 73, 74 and 76 of the Principal Ordinance are repealed.

Limitation on unsworn evidence

25. Section 76H of the Principal Ordinance is amended -

(a) by omitting from subsection (1) "statement made by him or her under section 405 of the Crimes Act," and substituting "unsworn evidence given by him or her";

(b) by omitting from subsection (2) "makes a statement under section 405 of the Crimes Act and" and "in the statement" and substituting "gives unsworn evidence and" and "in the unsworn evidence", respectively; and

(c) by omitting from subsection (3) "statement made by him or her under section 405 of the Crimes Act," and substituting "unsworn evidence given by him or her".

Repeal of sections 77, 79, 80, 86, 87 and 89

26. Sections 77, 79, 80, 86, 87 and 89 of the Principal Ordinance are repealed.

Certified copy of transcript of Supreme Court proceedings

27. Section 91 of the Principal Ordinance is amended by omitting subsections (4) and (6).

Repeal of sections 92 and 93

28. Sections 92 and 93 of the Principal Ordinance are repealed.

Fingerprints

29. Section 94 of the Principal Ordinance is amended by omitting subsections (1) and (2).

Repeal of sections 95 and 96

30. Sections 95 and 96 of the Principal Ordinance are repealed.

PART IX - AMENDMENT OF THE MAGISTRATES COURT ORDINANCE 1930 (ACT)

Principal Ordinance

31. The Magistrates Court Ordinance 1930 is in this Part referred to as the Principal Ordinance.

Conduct of case

32. Section 53 of the Principal Ordinance is amended -

(a) by omitting from subsection (1) "and may examine and cross-examine the witnesses giving evidence for or against him"; and

(b) by omitting from subsection (2) "and may give evidence himself and may examine and cross-examine the witnesses giving evidence for or against him, respectively".

Repeal of sections 55, 57 and 58

33. Sections 55, 57 and 58 of the Principal Ordinance are repealed.

PART X - AMENDMENT OF THE OATHS AND AFFIRMATIONS ORDINANCE 1984 (ACT)

Principal Ordinance

34. The Oaths and Affirmations Ordinance 1984 is in this Part referred to as the Principal Ordinance.

35. The Principal Ordinance is amended by inserting after section 5, in Part 1, the following section:

Ordinance to be subject to Evidence Act

"5A. This Ordinance applies subject to the Evidence Act 1987".

PART XI - AMENDMENT OF THE CRIMINAL PROCEDURE CODE (SINGAPORE) IN ITS APPLICATION IN CHRISTMAS ISLAND AND THE COCOS (KEELING) ISLANDS

Principal Ordinance

36. The Criminal Procedure Code of the Colony of Singapore, in its application in the Territories of Christmas Island and the Cocos (Keeling) Islands, is in this Part referred to as the Principal Ordinance.

Statements to police

37. Section 121 of the Principal Ordinance is amended by omitting subsection (1).

Power to record statements and confessions

38. Section 123 of the Principal Ordinance is amended by omitting subsection (6).

Defence of accused

39. Section 142 of the Principal Ordinance is amended by omitting subsection (3).

Procedure in summary trials

40. Section 172 of the Principal Ordinance is amended by omitting paragraph (e) and subparagraph (k)(ii).

Repeal of section 193

41. Section 193 of the Principal Ordinance is repealed.

Accused or advocate may open case and examine witnesses

42. Section 195 of the Principal Ordinance is amended by omitting subsection (4).

Repeal of sections 198, 199, 351 and 352

43. Sections 198, 199, 351 and 352 of the Principal Ordinance are repealed.

Repeal of section 121A

44. Section 121A of the Criminal Procedure Code of the Colony of Singapore, in its application in the Territory of Christmas Island, is repealed.

PART XII - AMENDMENT OF THE EVIDENCE ORDINANCE (SINGAPORE) IN ITS APPLICATION IN CHRISTMAS ISLAND AND THE COCOS (KEELING) ISLANDS

Principal Ordinance

45. The Evidence Ordinance of the Colony of Singapore, in its application in the Territories of Christmas Island and the Cocos (Keeling) Islands, is in this Part referred to as the Principal Ordinance.

Repeals

46. Sections 5 to 57 (inclusive), 59 to 91 (inclusive) and 119 to 165 (inclusive), together with the interpolated illustrations and explanations, of the Principal Ordinance are repealed.

PART XIII - AMENDMENT OF THE OATHS ORDINANCE (SINGAPORE) IN ITS APPLICATION IN CHRISTMAS ISLAND AND THE COCOS (KEELING) ISLANDS

Principal Ordinance

47. The Oaths Ordinance of the Colony of Singapore, in its application in the Territories of Christmas Island and the Cocos (Keeling) Islands, is in this Part referred to as the Principal Ordinance.

48. The Principal Ordinance is amended by inserting after section 2 the following section:

Ordinance to be subject to Evidence Act

"2A. This Ordinance applies subject to the Evidence Act 1987".

PART XIV - AMENDMENT OF THE SUPREME COURT ORDINANCE 1958 (CHRISTMAS ISLAND)

Principal Ordinance

49. The Supreme Court Ordinance 1958 of the Territory of the Christmas Island is in this Part referred to as the Principal Ordinance.

Evidence, practice and procedure

50. Subsection 15(1) of the Principal Ordinance is amended by omitting "Subject to this Ordinance"and substituting "Subject to the Evidence Act 1987, this Ordinance".

PART XV - AMENDMENTS OF THE SUPREME COURT ORDINANCE 1955 (COCOS (KEELING) ISLANDS)

Principal Ordinance

51. The Supreme Court Ordinance 1955 of the Territory of the Cocos (Keeling) Islands is in this Part referred to as the Principal Ordinance.

Evidence, practice and procedure

52. Subsection 15(1) of the Principal Ordinance is amended by omitting "Subject to this Ordinance" and substituting "Subject to the Evidence Act 1987, this Ordinance".

[1] The substantive provisions of this Act (in particular, the provisions about witnesses and admissibility of evidence), but not the provisions creating presumptions (Division 2 of Part VI), comprise an exhaustive statement of the law. The sections listed in subsection (2) save the common law rules as to -

� Parliamentary privilege (section 16)

� the Judge's general power to control proceedings (section 17)

� the effect of certain judgments( section 82) and

� corroborations and warnings (subsections 139(2) and 140(4).

[2] For rules of admissibility to be applied to evidence given by witnesses, see Parts IV and V.

[3] For rules of admissibility to be applied to evidence, including unsworn evidence, given by witnesses, see Parts IV and V. For the application or perjury provisions, see subsection 27(11) and Crimes Act 1914, sections 35 and 36.

[4] For rules of admissibility to be applied to evidence given by witnesses, see Parts IV and V.

[5] For rules of admissibility as to credibility evidence, see Division 6 of Part V.

[6] The admissibility of such evidence is governed by Parts IV and V.

[7] See Part V and section 143.

[8] The following exceptions are available:

� first-hand hearsay -

- civil proceedings, where the maker of the representation is unavailable (section 56) or available (section 57)

- criminal proceedings, where the maker of the representation is unavailable (section 58) or available (section 59), subject to notice requirements under section 60

� business records (section 61)

� tags and labels (section 62)

� telegrams, telexes, &c. (section 63)

� marriage, family history, family relationships or public or general rights (section 64)

� admissions (section 71)

� representations about employment or authority (subsection 76(2))

� representations about common purpose (subsection 76(2))

� some exceptions to the rule in Hollington v Hewthorn (subsection 81(3))

� good character and expert opinion about accuseds (sections 91, 92 and 95)

� authentication by affidavit (subsection 142(2)) and

� orders under section 147.

[9] Powers relevant to this provision include sections 117, 118 and 143.

[10] There are notice requirements: see section 60.

[11] There are notice requirements: see section 60.

[12] There are notice requirements: see section 60.

[13] There are notice requirements: see section 60.

[14] For provisions relating to the mode of proof, and authentication, of business records, see sections 125, 126 and 127 and paragraph 130(1)(e).

[15] For the definition of "personal knowledge", see subsection 55(2).

[16] For provisions relating to the mode of proof, and authentication, of tags, labels, &c., see section 133.

[17] For presumptions as to source and destination of telegrams, telexes, &c., see section 134.

[18] The following exceptions to the opinion evidence rule are available:

� lay opinion (section 67)

� expert opinion (section 68)

� certain exceptions to the rule in Hollington v Hewthorn (subsection 81(3))

� reputation or expert opinion about accuseds (section 91, 92 and 95) and

� orders under section 147.

[19] Further specific exclusionary rules relating to admissions are in sections 72, 73 and 74.

[20] There are other exclusionary discretions: see Division 9 of Part V.

[21] For exceptions, see section 81.

[22] For rules relating specifically to credibility evidence, see Division 6 of Part V.

[23] The following exceptions are available:

� other conduct (section 87)

� good character of, and expert evidence about, accuseds (sections 91, 92 and 95).

[24] Notice is required: see section 90.

[25] Notice is required: see section 90.

[26] See section 68.

[27] The following exceptions are available:

� character of accuseds (section 95)

� evidence adduced in cross-examination (sections 96, 97 and 100)

� evidence in rebuttal of denials (sections 98 and 99) and

� evidence to re-establish credibility (section 101).

[28] See section 42 for rules relating to re-examination.

[Return to Top]

ALRC 38

Evidence Bill 1987

Evidence (consequential amendments) Bill 1987

Explanatory Memorandum for Evidence Bill 1987 and Evidence (Consequential Amendments) Bill 1987

Evidence Regulations

Dissents

Suggested amendments to court rules

Explanatory Memorandum for Evidence Bill 1987 and Evidence (Consequential Amendments) Bill 1987

OUTLINE

1. These Bills implement recommendations of the Law Reform Commission in its Report on the Laws of Evidence in Federal and Territory Courts.

2. The Evidence Bill 1987 provides a comprehensive statement of the law of evidence to be applied in the High Court, the Federal Court, the Family Court and courts of the non self-governing Territories (the Australian Capital Territory and the external Territories other than Norfolk Island).

3. The Evidence (Consequential Amendments) Bill 1987 makes a number of consequential amendments to legislation affecting the courts covered by the Evidence Bill 1987.

4. The Evidence Bill 1987 represents a carefully worked out package of reforms designed to rationalise and update the laws of evidence. It will have the effect of saving costs and avoiding delays and waste of time.

5. The Bill follows the normal course of a trial, dealing first with the competence and compellability of witnesses, whether they should give evidence on oath or on affirmation and the way they are examined and cross-examined. It sets out a complete statement of the rules governing the admissibility of evidence, covering matters such as the hearsay rule, the admissibility of confessions in criminal trials and privileges such as client/legal privilege, the privilege against self-incrimination and privilege in respect of matters of state. Provisions are also included covering the standards of proof to be met, covering judicial notice, the way in which documents and other things can be proved and providing safeguards to protect parties from the risk of unfair prejudice.

EVIDENCE BILL 1987

NOTES ON CLAUSES

Clauses 1 and 2 - Short title and commencement

6. These clauses provide for the short title and commencement of the Bill. It will come into operation on a day to be fixed by Proclamation.

Clause 3 - Interpretation

7. This clause provides definitions for a number of terms used throughout the Bill. Key definitions include:

admission. This includes anything said outside court by, or attributable to, a party that would adversely affect the party's interest in the outcome of the court proceedings. In criminal trials, it includes a confession.

case. A party proves his or her case by proving the facts that he or she has the legal burden of proving. Thus, for example, in a prosecution for murder, the Crown has the legal burden of proving the accused did the act causing death and intended to cause death. That is the Crown's case. If the accused wishes to raise a defence of, for example, insanity, it is for the accused to prove that he or she was, at the time, insane. That is the accused's case.

civil proceeding. Some provisions of the Bill differ according to whether they apply in civil or criminal proceedings. Civil proceeding is defined as any kind of proceeding in a federal or Territory court other than a criminal proceeding. It includes proceedings for the recovery of penalties such as penalties recoverable by civil action under the Trade Practices Act 1974.

confidential communication and confidential record. These definitions are relevant to Part V Division 8: Privilege, especially clauses 106, 107 and 109. The communication or record falls within this definition if any of the persons between whom it passes is under an express or implied obligation not to disclose its contents. The obligation need not be a strict legal or equitable obligation: a moral obligation is sufficient.

credibility rule. See notes on clause 94.

criminal proceedings. These are, essentially, a prosecution for an offence. Committal proceedings are expressly included to avoid argument.

document. This definition is drawn from the definition provided for in the Acts Interpretation Act 1901 s 25 but expands it slightly: that definition does not include certain photographs.

evidence. This definition is included to ensure that evidence given by an accused without being sworn is treated as evidence.

hearsay rule. See notes on clause 54.

identification evidence. This definition is relevant only in a criminal proceeding and primarily relates to Part V Division 7. It is limited to eyewitness identification evidence and reports of an eyewitness identification.

investigating official. This includes a police officer and extends to people like customs officers and companies inspectors whose duties include the investigation of offences.

judge. This means the person before whom the proceeding is being held. It can be a Judge or a magistrate.

leading question. This means a question that suggests a particular answer or assumes the existence of facts in dispute without the witness first giving evidence. The classic leading question is 'Have you stopped beating your wife?'

legal or administrative proceeding. This covers the widest possible range of legal proceedings. It includes not only proceedings before courts but also proceedings before tribunals, industrial commissions and arbitrators. Coroners' courts and court martial proceedings are specifically included.

offence. This extends to State and Territory offences.

official questioning. This is defined to mean questioning by an investigating official about an offence. The expression is used in proposals to control the admissibility of admission and confessions (Division 3 of Part V).

opinion rule. See notes to clause 66.

person who is being prosecuted for a related offence. Where A and B are charged with the commission of an offence, then, for the purposes of the trial of A, B is a person who is being prosecuted for a related offence and vice versa. The related offence must have arisen in relation to the same events as the offence being prosecuted, or relate to or be connected in some way with it, for example, by way of aiding and abetting. In the example, B will cease to be a person charged with a related offence once the prosecution against B has been completed.

previous representation. This definition is important for the provisions relating to the hearsay rule (see Part V Division 1). A typical previous representation is an out of court statement made by a witness or by somebody else and of which evidence is sought to be given in a trial. For example, if A wishes to give evidence that he heard B, as he was dying, say 'X shot me', what B said is a previous representation. See also notes on the definition of representation.

prior consistent statement. A prior consistent statement of a witness is a previous representation consistent with the witness' evidence.

prior inconsistent statement. As its name implies, this is the opposite of a prior consistent statement.

probative value. Evidence tendered to prove facts can vary in its strength - its probative value. The probative value of a piece or evidence is defined as the extent to which it could rationally effect the assessment of the probability of the existence of the fact that is in issue. This links in with the relevance rule (see Part IV) and exclusionary discretions (see Part V Division 9).

public document. This is a special class of documents: documents forming part of the records of, or kept by, governments or government bodies. Hansards are expressly included.

representation. This includes any form of statement, express or implied, that a state of affairs exists. It includes assertions to be inferred from conduct, for example, a nod of the head to signify yes.

tendency rule. See notes to clause 86.

unsworn evidence. This is evidence given by a witness without the witness first having sworn an oath or made an affirmation.

Clause 4 - References to business

8. This clause provides an inclusionary definition of business, The list includes some things we would call "businesses". It includes

a profession, calling, occupation, trade or undertaking

any Crown or government activity

activities of statutory office holders, statutory bodies and the like including those of foreign countries

proceedings of Parliaments and Houses of Assembly.

9. Subclause (2) is included to ensure that the definition covers non-profit activities and those carry on outside Australia.

Clause 5 - References to examination in chief &c.

10. This clause defines examination in chief, cross-examination and re-examination. A party who calls a witness normally questions the witness first (see paragraph 32(a)). That questioning is called examination in chief. Examination by other parties is called cross-examination. After cross-examination, the party who called the witness may usually question the witness again. This is called re-examination.

11. Subclause (2) is necessary to ensure that, in cases where witnesses are recalled to give further evidence, the party who called them is not restricted to the rules governing re-examination (see clause 42).

Clause 6 - Civil penalties

12. Certain provisions of the Bill refer to persons being liable to civil penalties. This is a reference to persons who are liable in trials other than criminal trials to penalties that can be imposed by law. Examples are the penalties imposed under the Customs Act 1901 and Trade Practices Act 1974.

Clause 7 - Non-availability of persons

13. The rules relating to the admissibility of hearsay (Part V Division 1) depend to a large extent on whether the person who made the hearsay statement is 'available to give evidence'. This clause provides an exhaustive definition of that term. The only cases in which a person will be regarded as unavailable are

the person is dead

the person is incompetent to give evidence (see clause 19 and subclauses 21(1) and 22(2))

it would be unlawful for the person to give that evidence (for example, because the court has directed the person not to give it under clause 112(1) or a law such as the Income Tax Assessment Act 1936 section 16 forbids giving that evidence)

the person cannot be found after reasonable attempts

the person cannot be compelled to give the evidence after reasonable attempts, for example, the person refuses to answer a subpoena or refuses to give evidence and would rather be committed for contempt of court than give the evidence.

Clause 8 - Unavailability of documents

14. Some clauses, in particular clauses 125 and 126, make special provision in relation to the proof of contents of documents that are unavailable. This clause provides an exhaustive definition of that term. A document is unavailable to a party if

the party cannot find it after reasonable efforts

it has been destroyed, but if it has been destroyed by the party, the destruction must have been in good faith

the document cannot be subpoened or otherwise obtained by judicial process

some other party has or had it and knows or knew that the document is or was likely to be relevant in the proceedings.

15. In addition, there is specific provision that a document that is not closely related to an issue that is important in the case should be regarded as unavailable. This is to ensure that more stringent proof requirements only apply to documents that relate to important or significant issues.

Clause 9 - Representations in documents

16. This clause makes it clear that a representation contained in a document can be taken to have been made by a particular person if the person wrote, dictated or otherwise produced the document or recognises the representation as his or her own by signing or otherwise marking the document.

Clause 10 - Witnesses

17. This clause makes it clear that 'witnesses' includes a party (for example, in a criminal trial, the accused, while giving evidence, including unsworn evidence) and that references to witnesses who have been called by parties includes references to those parties themselves.

PART II - APPLICATION OF ACT

18. This Part sets out the circumstances in which the Bill applies- in which courts and in which proceedings. It also sets out the relationship between the Bill and other Commonwealth, State and Territory laws.

Clause 11 - Courts and proceedings to which Act applies

19. Subclause (1) provides that the Bill applies to all proceedings in a federal court and in courts and of the Territories other than the Northern Territory. It specifically applies to bail proceedings, interlocutory proceedings and proceedings heard in chambers.

20. Subclause (2) provides that the Bill does not apply in certain circumstances.

Transitional provision. It does not apply to proceedings the hearing of which commenced before the commencement of the Bill.

Sentencing. It does not apply on sentencing.

Appeals. It does not apply on appeal from State courts or from the Northern Territory Supreme Court.

Clause 12 - Territories

21. An Act does not extend to an external Territory unless the Acts so provide. This clause extends the act to each external Territory. Federal courts can sit in each external Territory and accordingly it is necessary so to extend the Act.

Clause 13 - Act to bind Crown

22. An Act does not bind the Crown unless it expressly or by necessary implication says so. It is necessary that the Crown be bound as the Crown is a frequent litigant in federal and Territory courts and should be bound by the same law as other litigants.

Clause 14 - Operation of other Acts, &c.

23. This clause provides that Commonwealth and Territory laws (other than Northern Territory laws) that make specific provision in relation to evidentiary matters prevail over the general provisions of the Bill. The provisions of the Judiciary Act 1903 sections79, 80 and 80A are not included: these are dealt with in clause 15.

Clause 15 - Application of certain provisions

24. At present, federal courts apply the evidence law of the State or Territory in which they are sitting, by virtue of the Judiciary Act 1903 sections 79, 80 and 80A. This clause applies the substantive provisions of the Act, with the significant exception of Part VI, Division 3 (which relates to mode of proof of documents), as an exhaustive statement of the law. The clause provides that the State and Territory law 'federalised' by the Judiciary Act is overridden by the provisions of this Bill.

Clause 16 - Parliamentary privilege preserved

25. This clause provides that the rules for admissibility of evidence do not affect the law relating to Parliamentary privilege.

Clause 17 - General powers of the court

26. This clause preserves, subject to the Bill, the general power of courts to control proceedings before them.

PART III - WITNESSES

27. This Part concerns witnesses. Division 1 covers the competence of persons to be witnesses, and the extent to which they can be compelled to give evidence. Division 2 sets out the rules for swearing oaths and making affirmations, and the giving of unsworn evidence by the accused in a criminal trial. Division 3 sets out the rules to be followed in examination in chief, cross-examination and re-examination.

Division 1 - Competence and compellability of witnesses

Clause 18 - Competence and compellability

28. This clause provides that, except as expressly provided otherwise by the Bill, everyone is a competent and compellable witness.

Clause 19 - Competence: lack of capacity

29. On occasions the question can arise whether a witness, for example, a very young child, has the psychological capacity to perform the task of giving evidence. It may be a waste of time and unfair to other parties to allow the witness to give evidence. Existing law requires only that a person understand the nature and consequences of the oath in order to be regarded as psychologically competent to give evidence. Subclauses (1) and (2) replace this with a two fold test:

a capacity to understand that, in giving evidence, there is an obligation to give truthful evidence

a capacity to give a rational reply to questions that may be put.

30. The second element of the test need not be satisfied generally: a person can be regarded as incompetent only in respect of particular matters.

31 Persons who are under a disability (for example, total deafness) or are unable to understand or to communicate replies to questions about facts are incompetent if their difficulties cannot be overcome or cannot be overcome without undue cost or undue delay (subclause (3)).

32. Subclause (5) overcomes an argument that evidence given by a witness who becomes incompetent while giving evidence should be inadmissible. It provides that the evidence is not to be regarded as inadmissible for that reason alone.

33. Subclause (6) permits the court to investigate questions of competence in any way that is just.

Clause 20 - Compellability: Sovereign, &c.

34. Subclause (1) provides that Sovereign, the Governor-General, the Governor of a state, the administrator of a territory, a foreign sovereign or the Head of State of a foreign country (while competent to give evidence) are not compellable to give evidence.

35. Subclause (2) provides for non-compellability of members of Parliament (including State and Territory Parliaments) if attending court would interfere with their attending a sitting of the Parliament or a meeting of a committee on the Parliament.

Clause 21 - Competence and compellability: judges and jurors

36. Subclause (1) provides that judges and jurors are not competent to give evidence in the proceeding in which they are acting as judges and jurors.

37. Subclause (2) provides that a person who acted as a judge in a legal or administrative proceeding is not compellable to give evidence about what happened during that proceeding without the leave of the court in which the evidence is to be given.

Clause 22 - Competence and compellability: defendant, &c., in criminal proceedings

38. This clause provides special rules of competence and compellability for the accused in a criminal trial and persons being prosecuted for related offences.

39. An accused is not competent to be called to give evidence as witnesses for the prosecution (subclause (2)).

40. Persons who are being prosecuted for related offences are not to be compellable at the instance either of the prosecution or the defence. They may not give evidence for the prosecution (that is, voluntarily) without the leave of the court (subclause (3)).

41. The matters that the court will take into account in determining whether to give that leave are set out in subclause (5) as including

whether the witness has or appears to have a motive to misrepresent and

whether the completion or termination of the prosecution for the related offence before the evidence can be given is reasonably practicable.

42. The court must satisfy itself, where it appears that a witness may be a person who is being prosecuted for a related offence, that the witness is aware of his or her rights (subclause (5)).

Clause 23 - Comment on failure to give evidence

43. This clause applies in criminal proceedings.

44. It permits the judge and defendants to comment on the failure of an accused to give evidence, including unsworn evidence (for comment on unsworn evidence see clause 28).

45. Any comment that is made is not to suggest that the reason for not giving evidence was because the accused believed he or she was guilty of the offence.

Clause 24 - Compellability of spouses, &c., in criminal proceedings

46. This clause makes special provision for members of families of the accused in a criminal trial, that is, spouses, de facto spouses, parents and children of defendants.

47. Each of those persons is a competent and compellable witness (see clause 18). However, any of them may object to giving evidence as a witness for the prosecution (subclause(2)). The objection must be made before the evidence is given or as soon as the witness becomes aware that the objection may be made (subclause (3)).

48. Any of these witnesses may also object to giving evidence of communications between the witness and the accused (subclause (4)).

49. The court must be satisfied that witnesses are aware of their rights in this regard (subclause (5)). Any objection must be determined in the absence of the jury (subclause (6)).

Clause 25 - Compellability of spouses in civil proceedings

50. In civil proceedings, other than custody and like proceedings, a person is not compellable to give evidence of communication between the witness and his or her spouse.

Division 2 - Sworn and unsworn evidence

51. This Division imposes the requirement that all oral evidence be sworn (that is, only given after swearing an oath or making an affirmation) and provides that, in criminal proceedings, an accused may give unsworn evidence without being cross-examined. Rules to control both are set out.

Clause 26 - Evidence of witnesses to be on oath or affirmation

52. This clause requires all witnesses to swear an oath or make an affirmation before giving evidence. Interpreters are under a similar requirement (subclause (1)). The forms of oath and affirmation are set out in the Schedule.

53. Subclause (2) makes it clear that no preference is to be given to swearing an oath over making an affirmation; both are to be regarded as equally effective.

54. Subclause (3) makes it clear that it is not necessary to hold or use a religious text to swear an oath. This does not prevent a religious text being used if one is readily available.

55. Subclause (4) covers the case where a witness refuses to choose whether to swear an oath or make an affirmation. In that case, the court can direct the witness to make an affirmation. It also allows the court to direct a witness to affirm if it is not reasonably practicable for the witness to swear an appropriate oath.

56. At present, in most jurisdictions, a religious oath is effective even though the person who swears it does not have a religious belief. This is preserved in subclause (5). It also provides that the oath is effective notwithstanding the witness did not understand the nature and consequences of the oath. This was the old test for psychological competence. It is replaced by the test of psychological competence in clause 19.

57. Subclause (6) makes it clear that witnesses who merely produce documents or objects, but do not give any evidence themselves, need not be sworn or make an affirmation.

Clause 27 - Unsworn evidence in criminal proceedings

58. Subclause (1) allows the accused in a criminal trial to give evidence without being sworn or making an affirmation. The rest of this clause sets out the limitations on this right.

59. The most significant limitation is that what the accused says in his or her unsworn evidence is to be evidence, and is therefore to be subject to the rules on admissibility (Part IV and V).

60. Subclause (2) prevents an accused who has given unsworn evidence from later giving sworn evidence unless there are special circumstances and the court gives leave.

61. An accused giving unsworn evidence may read from a prepared statement or may use notes (subclause (3)). If the accused is represented by a lawyer, the lawyer may help the accused to prepare the statement or notes (subclause (4)). The statement or notes may have to be produced to the court or to the prosecution or a co-accused if the court so directs (subclause (5)). An accused who cannot read may be further helped: the lawyer may read the prepared statement to the court but only with the leave of the court (subclause (6)).

62. Subclause (7) allows the accused's lawyer to jog the memory of the accused if the accused has forgotten or overlooked some matter in his or her unsworn evidence.

63. Accuseds who give unsworn evidence will be immune from cross-examination but the evidence they give may not be used for or against any co-accused in the trial. These two rules are abrogated, however, if the accused also gives sworn evidence (subclauses 27(8)-(10)).

64. Subclause (11) expressly applies the perjury provisions of the Crimes Act 1914 to unsworn evidence.

Clause 28 - Comment on unsworn evidence

65. This clause applies where an accused has given unsworn evidence only.

66. Subclause (1) allows the judge and co-accused comment on the fact that the accused did not give sworn evidence but prohibits the prosecution from commenting.

67. The clause prescribes two things that the judge or a co-accused is not allowed to say in commenting:

the comment must not suggest that unsworn evidence was given (and, accordingly, the accused was not cross-examined on the evidence given) because of a belief that he or she was guilty

the comment must not suggest that unsworn evidence is, because it is not sworn or not the subject of cross-examination, necessarily less persuasive than evidence given on oath or after an affirmation.

Clause 29 - Court to advise witnesses

68. This clause requires the court to tell all witnesses, before they give evidence, that they have a free choice of swearing an oath or making an affirmation (subclause (1)).

69. Subclause (2) applies to criminal proceedings. It requires the court to tell the accused, in addition, that there is also a choice of giving unsworn evidence. The jury must be present while the accused is told this (subclause (2)).

70. Subclause (3) also applies in criminal proceedings. It requires the court to tell the accused, if the accused is not represented by a lawyer, that sworn evidence may be more persuasive than unsworn evidence and of the penalties for perjury. This advice, however, must be given in the absence of the jury.

Division 3 - Manner of giving evidence

71. This Division prescribes rules governing the way in which witnesses are questioned and the way in which they may give their evidence. It is in three Subdivisions:

rules applicable at all stages of questioning (Subdivision A)

rules applicable in examination in chief and re-examination (Subdivision B) and

rules applicable in cross-examination (Subdivision Q.

Subdivision A - General rules

Clause 30 - Court to control questioning of witnesses

72. To make this Division an exhaustive statement of the law, this clause gives the court general power, subject to the Bill, to control the way in which evidence is elicited from witnesses during the course of the trial. It is complementary to clause 17. it allows the court to control

the manner in which witnesses are questioned

the production and use of documents and things in questioning witnesses

the order in which the parties can question witnesses (and see clause 32).

Clause 31 - Parties may question witnesses

73. This clause confirms the rule that, generally, every party is entitled to question any witness who gives evidence.

Clause 32 - Examination in chief to be completed before other questioning

74. The usual order of questioning of witnesses is examination in chief by the party who called the witness, cross-examination by other parties followed by re-examination by the party who called the witness (see clause 5). The court may, however, direct that questioning take place in some other order.

Clause 33 - Manner and form of questioning witnesses

75. Subclause (1) confirms the general rule that, subject to the control of the court, it is up to the parties to determine how to question witnesses.

76. Subclause (2) allows the court to encourage the giving of evidence in narrative form. Psychological research suggests that this sort of presentation should be encouraged.

Clause 34 - Interpreters

77. This clause reverses the present rule that a witness is not entitled as of right to an interpreter. Under this clause, witnesses are entitled as of right to an interpreter unless it can be shown that they can speak and understand English sufficiently to give adequate replies generally or as to particular facts.

78. The clause also allows interpreters for parts of witnesses' evidence.

Clause 35 - Deaf and mute witnesses

79. This clause makes it clear that deaf and mute witnesses can be questioned, and give evidence, in an appropriate way. It is subject to the overriding requirement of subclause 19(3).

Clause 36 - Attempts to revive memory in court

80. Memory being fallible, it is desirable that witnesses be able to revive the memory both before going into, and while in, the witness box. This, however, must be controlled.

81. Subclause (1) allows witnesses to use notes to revive memory provided the leave of the court has been obtained.

82. Subclause (2) sets out some of the matters to be taken into account by the court in determining whether to give leave:

whether the witness can recall the fact adequately without using notes

whether the notes had been written by, or checked by, the witness at a time when the events they record were fresh in the witnesses' memory.

83. Subclauses (3) and (4) allow the witness to read out the notes, with leave of the court, but the court may also order the notes produced to the other parties if the other parties so request.

Clause 37 - Attempts to revive memory out of court

84. If it appears that a witness has used notes to revive his or her memory out of court (compare clause 36) the court may, on request, direct that the notes be produced to the other parties in the proceedings (subclause (1)), and, if that direction is not complied with, the court has a discretion to refuse to admit evidence based on the notes (subclause (2)).

Clause 38 - Direction not to extend to certain documents

85. This clause preserves client legal privilege in respect of notes directed to be produced under clause 37. (For the rules relating to client legal privilege, see clause 106).

Clause 39 - Effect of calling for production of documents

86. On occasions one party will, in court, call upon another party to produce a document and, on its production, will inspect it. The present law contains a rule (known as the rule in Walker v Walker) under which, if this occurs, be a party calling for the document and inspecting it may be required to tender it and it will be admitted although the rules of admissibility would not normally permit this.

87. This clause overcomes the effect of this technical rule. Whether a particular document is admissible will depend simply on whether it is admissible under Parts IV and V. If it is not, it will not be rendered admissible simply because a party called for its production by another party and inspected it.

Subdivision B - Examination in chief and re-examination

88. This Subdivision sets out additional rules applying on examination in chief and re-examination.

Clause 40 - Leading questions

89. This clause preserves the existing practice that, generally speaking, leading questions are not to be put to witnesses in examination in chief or re-examination. Leave is required of the court unless the question simply relates to introductory matters or matters not in dispute.

Clause 41 - Unfavourable, &c., witnesses

90. At present, a party who calls a witness cannot challenge the witness about the answers given in examination in chief or re-examination, even if they are not favourable. The only way in which the witness' evidence, or the witness' credibility, can be attacked is if the witness is declared 'hostile'. To do this, at present it must be demonstrated that the witness is not prepared to tell the truth in answer to a non-leading question.

91. This clause provides a new approach.

92. Subclause (1) allows parties, with leave of the court, to cross-examine their own witnesses about evidence of the witness that is unfavourable to the party who called the witness. Subclause (2) allows the same right if the witness appears not to be making a genuine attempt to give evidence about a matter that the witness may reasonably be supposed to know about. The cross-examination with leave of the court may extend to matters going to credibility only (subclause (3)).

93. Subclause (4) requires that, as a general rule, this cross-examination by the party who called the witness must take place before the other parties have an opportunity to cross-examine the witness. The court may vary this order of questioning (subclause (5)).

94. Subclause (6) sets out two of the matters that the court must take into account in determining whether to exercise its powers under this section:

whether notice of intention to seek leave was given at the earliest opportunity

to what extent the witness has been questioned or is likely to be questioned by other parties.

Clause 42 - Limits on re-examination

95. This clause clarifies the law regarding the extent to which re-examination may canvas matters arising out of examination in chief or cross-examination. As a general rule, new matter (that is matter not covered by evidence already given by the witness) may not be introduced in re-examination without the leave of the court.

Subdivision C - Cross-examination

96. This Subdivision provides a number of specific rules relating to cross-examination.

Clause 43 - Witness called in error

97. Where a witness is called in error, there will normally be no right to cross-examination unless the witness has given substantive evidence in the proceedings. A witness who has been merely questioned about his or her name and address, for example, will not be able to be cross-examined by the other side.

Clause 44 - Improper questions

98. This clause extends the present law which permits the court to control unduly annoying, harassing, intimidating, offensive, oppressive or repetitive cross-examination (subclause (1)). Matters that the court will take into account in determining whether to exercise its powers under this clause include the relevant condition or characteristics of the witness such as, for example, age and disability (subclause (2)).

Clause 45 - Leading questions

99. This clause continues the present law (though not the practice) which allows the court to control the putting of leading questions in cross-examination. Normally speaking, however, leading questions will be allowed and subclause (2) sets out a number of matters which would generally have to be satisfied before the court would exercise its powers under this clause:

whether the witness gave evidence in examination in chief unfavourable to the party that called the witness

whether the witness is 'in the camp' of the cross-examiner

whether leading questions will inhibit the fact finding process of the court.

100. Subclause (3) specifically preserves the general power of the court to control leading questions.

Clause 46 - Prior inconsistent statements of witnesses

101. A frequent method of cross-examination is to question a witness on a prior statement of that witness which is inconsistent with the evidence of the witness. This clause applies in that situation.

102. Subclause (1) renders it unnecessary to put all details of the prior statement to the witness before the cross-examination.

103. Subclause (2), however, requires that, before further proof of the prior inconsistent statement can be adduced (through another witness), the witness who is alleged to have made it must be given enough particulars of the statement to identify it and must be aware that it is intended to use it as a prior inconsistent statement.

104. Subclause (3) allows parties to re-open their cases to adduce evidence of prior inconsistent statements if they have satisfied the requirements of subclause (2).

Clause 47 - Previous representations of other persons

105. On occasions, a party may wish to cross-examine a witness on a prior statement of some other person, for example, a statement of another witness or a statement out of court by an employee of a witness.

106. The clause provides a regime to control the situation.

107. Subclause (2) provides that, where evidence of such a representation has been or will be admitted in evidence, cross-examination may occur about it.

108. Subclause (3) allows limited cross-examination if the previous representation has not been, and will not be, admitted. The only way in which the previous representation can be used is for a document containing it to be produced to the witness and for the witness to be asked whether, having read it, he or she still adheres to the evidence given. The document is not to be identified and its contents are not to be disclosed, but it may be marked for identification (subclause (4)).

Clause 48 - Production of documents

109. This clause follows on the previous clauses, 46 and 47, which deal with the way in which witnesses may be questioned about their own prior inconsistent statements or previous representations made by other persons. Where cross-examination of this kind has taken place, and the prior inconsistent statement or previous representation is recorded in a document, subclause (1) allows the court, or some party other than the cross-examiner, to require the document to be produced. If the document is not available to the cross-examiner, the requirement may be satisfied by producing as much evidence as the cross-examiner had of the document.

110. Subclause (2) allows the court to examine documents produced under subclause (1) and give directions as to the way they can be used. Paragraph (2)(c) specifically continues the present power of the court to admit the document in evidence even if neither party tenders it. This power is necessary to avoid the risk of matters proceeding on a false factual basis.

111. Subclause (3) makes it clear that another party cannot force a cross-examiner to tender a document simply because it was used in cross-examination.

Clause 49 - Certain matters to be put to witness

112. It is unfair to a witness and the party who called the witness and it may adversely affect the fact-finding task of the courts, if a party adduces evidence the substance of which was not put to that witness. Under this clause, the court can give the other party leave to recall the relevant witnesses.

PART IV - ADMISSION OF EVIDENCE: RELEVANCE RULE

113. Parts IV and V deal with the admission and use of evidence. Part IV contains the fundamental rule concerning the admission of evidence, the relevance rule. If evidence is not relevant to the issues in the case, it will not be admissible. If it is relevant to the issues in a case, it will be admissible unless a specific exclusionary rule excludes it. Part V contains the rules under which evidence, even though relevant, can be excluded- they are the exclusionary rules.

Clause 50 - Relevant evidence

114. Subclause (1) defines what evidence is relevant in a proceeding. The test of relevance is simply whether the evidence is logically relevant, that is, whether it could, if accepted, rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue. No minimum standard of relevance is required: the merest logical relevance is sufficient. Evidence that is only marginally relevant can be excluded by clause 117 if the disadvantage of admitting the evidence outweighs its probative value.

115. Subclause (2) is included to make it abundantly clear that evidence may be relevant even though it only relates to

the credibility of a witness. The extent to which the evidence of a particular witness can be accepted is clearly a relevant consideration. For example, the weight to be given to a witness' evidence of eye-witness identification will depend in part on the circumstances in which the identification took place: was the night dark; is the witness' eye-sight poor?

the admissibility of other evidence. The admissibility of evidence can depend on the proof of other facts. For example, the opinion rule, which excludes evidence of an opinion to prove the facts as to which the opinion is expressed, is relaxed so far as 'expert' evidence is concerned (see clause 68). Evidence that goes to the qualification of an 'expert' is relevant to determining the admissibility of the expert's evidence.

a failure to adduce evidence. Adverse inferences can be drawn against a party who does not call evidence available to it. To meet this situation, it should be possible for the party to call evidence to explain the failure to call the evidence - for example, the witness concerned may be ill.

Clause 51 - Relevant evidence to be admissible

116. Subclause (1) states the fundamental evidence rule: relevant evidence is admissible and, subject to the exclusionary rules (mainly Part V), shall be admitted, and irrelevant evidence is not admissible.

Clause 52 - Provisional relevance

117. The relevance of particular evidence may not be immediately apparent. For example, the relevance of real evidence such as a knife in a murder trial may depend on evidence being adduced and accepted that it was the weapon used in the alleged murder. That, however, may be a question that will have to be decided before the accused can be convicted. It is a question that arises twice - when the knife is tendered and when the jury considers its verdict.

118. Paragraph (1)(a) provides that, where the determination of relevance of particular evidence depends on the court making a particular finding of fact, the court may provisionally find that it is relevant if it is reasonably open to make that finding - for example, that the knife was the murder weapon. This is a less stringent standard than proof on the balance of probabilities or proof beyond reasonable doubt.

119. The less stringent standard of proof only applies so far as the provisional admissibility of the particular evidence is concerned. The more stringent ultimate standards proof provided for in clauses 136 and 137 will still need to be satisfied at the end of the trial when the case must be decided.

120. Paragraph (1)(b) allows the court to admit evidence provisionally on the basis that the facts necessary to support its relevance will be proved later in the proceeding to the 'reasonably open to make the finding' standard. This is necessary because items of evidence cannot be presented together - the knife must first be produced and tendered and then the evidence linking it to the issues in the case presented.

121. Subclause (2) makes special provision for the case of evidence to show a common purpose to effect an unlawful conspiracy. It allows the court to use evidence of one alleged conspirator A's words or actions together with those of alleged conspirator B's support a finding of common purpose between them. This reflects the existing law.

Clause 53 - Inferences as to relevance

122. Subclause (1) allows the court, for the purpose of determining questions as to relevance of documents and things, to examine the document or thing concerned and to draw any reasonable inference from them, including inferences as to authenticity and identity.

123. Subclause (2) provides that this clause is not to limit the matters from which the court can properly draw inferences.

PART V - ADMISSION AND USE OF EVIDENCE: EXCLUSIONARY RULES

124. This Part provides the list of rules by reference to which evidence, even though relevant, can be excluded or its use in a trial restricted. It is divided into nine Divisions.

125. The first six of these deal with categories of evidence that have been traditionally the subject of exclusionary rules:

hearsay evidence (Division 1)

opinion evidence (Division 2)

admissions and confessions (Division 3)

evidence of previous judgments and convictions (Division 4)

evidence of character and conduct (Division 5)

evidence that relates only to credibility (Division 6).

Division 7 adds a further category of exclusionary rule: that dealing with identification evidence of eye-witnesses. Division 8 deals with the following:

client legal privilege

a privilege in respect of confidential communications and records and

the privilege of self-incrimination.

It also deals with certain classes of evidence that are to be excluded in the public interest. Division 9 provides for three exclusionary discretions.

126. The broad structure of most of the Divisions is that a general exclusionary rule is provided for which exceptions of various kinds are made.

Division 1 - Hearsay evidence

127. This Division defines hearsay evidence and sets out an exclusionary rule for hearsay evidence and a number of exceptions to that rule. It is divided into three Subdivisions:

the exclusionary rule (Subdivision A)

four exceptions for first-hand hearsay (Subdivision B)

five exceptions for more remote hearsay (Subdivision C).

Subdivision A - The hearsay rule

Clause 54 - Exclusion of hearsay evidence

128. This clause provides the general rule excluding hearsay evidence.

129. Hearsay evidence is defined as evidence of a previous representation. Subclause (1) provides that such evidence is not admissible for a hearsay purpose, that is, to prove the existence of a fact intended by a person who made the previous representation to be asserted by it - for example, evidence of a previous statement of a person "X shot me" to prove that X did.

130. Subclause (2) defines such a fact as 'the asserted fact'.

131. Subclause (3) provides that, if hearsay evidence is admitted for a non-hearsay purpose - for example, a witness' prior inconsistent statement to contradict the witness' evidence and credibility - it can nevertheless be used for the hearsay purpose. This provision overcomes a distinction drawn in the present law that is difficult to comprehend and apply.

Subdivision B - "First-hand" hearsay

132. This subdivision provides four exceptions for first hand hearsay (defined in subclause 55(1)). The exceptions are grouped by reference to whether the trial is a criminal or civil trial. In each group different rules apply depending on whether the maker of the previous representation concerned is available or unavailable.

Clause 55 - Restriction to "first-hand" hearsay

133. First hand hearsay evidence is defined primarily in subclause (1). It is direct evidence of a representation made by persons whose knowledge of the fact asserted in the representation was 'personal knowledge'. 'Personal knowledge' is defined as knowledge that was based on a persons perceptions of what occurred and not merely on reports from other persons on what occurred. Subdivision B is limited to evidence of this category of representations.

Clause 56 - Exception: civil proceedings where maker not available

134. This clause applies to civil proceedings where the maker of the previous representation (who had personal knowledge of the facts asserted) is not available to give evidence.

135. The hearsay rule is lifted for oral evidence of such a representation given by a person who saw, heard or otherwise perceived it being made (paragraph (a)).

136. It is also lifted for documents that contain such a representation and for documents that contain representations to which it is reasonably necessary to refer to understand the previous representation (paragraph (b)).

137. Notice of intention to adduce the evidence will have to be given under clause 60.

Clause 57 - Exception: civil proceedings where maker available

138. This clause applies in civil proceedings where the maker of the previous representation (who had personal knowledge of the facts asserted) is available to give evidence (subclause 57(1)).

139. An exception is provided in subclause (2), similar to that in clause 56, where it would cause undue expense or undue delay or would not be reasonably practicable to call the maker of the representation to give evidence (subclause (2)). Notice must again be given under clause 60.

140. The other exception, subclause (3), covers the case where the maker of the previous representation is or is to be called to give evidence. Here, the hearsay evidence can be given by the maker himself or herself, or by someone else who witnessed the representation being made, only if, when the representation was made, the occurrence of the asserted fact was fresh in the mind of the maker. This ensures that the evidence of the asserted fact that is given is likely to be the most reliable and minimises the duplication of evidence.

141. Subclause (4) prevents documentary evidence of a representation which is covered by subclause (3) from being tendered before the conclusion of the examination in chief of the maker unless the court gives leave.

Clause 58 - Exception: criminal proceedings where maker not available

142. This clause applies in criminal trials where the maker of the previous representation (with personal knowledge of the facts asserted in the representation) is not available to give evidence.

143. Subclause (2) provides for a limited series of circumstances in which the hearsay rule is lifted circumstances which are likely to enhance the reliability of the representation:

representations made in the course of duty

representations made at, or shortly after, the time when the asserted fact occurs and in circumstances that make it unlikely they are fabrications

are representations made in the course of giving sworn evidence where there was an opportunity for cross-examination

representations against interest (defined in subclause (4)). The person giving the evidence of the representation must have witnessed it being made. Notice is again required under clause 60.

144. Subclause (3) provides that a reasonable opportunity to be present and cross-examined is sufficient for the purposes of paragraph (2)(c).

145. Subclause (4) defines representations against interest as representations that

tend to damage the reputation of the maker

tend to incriminate the maker or

tend to show that the maker is liable in an action for damages.

146. Subclause (5) provides an additional provision for the accused in the criminal trial, In addition to the above circumstances in which the hearsay rule is to be lifted, it can be lifted for evidence adduced by the accused if the witness giving the hearsay evidence personally witnessed the representation being made. Notice is again required under clause 60.

147. Where such evidence has been admitted, subclause (6) lifts the hearsay rule for the same kind of evidence, about the same matter, adduced by another party, the prosecution or a co-accused. Notice is again required under clause 61.

Clause 59 - Exception: criminal proceedings where maker available

148. This clause applies in criminal trials where the maker of the previous representation (with personal knowledge of the facts asserted) is available to give evidence.

149. Subclause (1) creates an exception to the hearsay rule for evidence given by the maker of the representation or by someone who witnessed the statement being made, only if the maker is called to give evidence and, at the time the statement was made, the asserted fact was fresh in the memory of the maker.

150. Subclause (2) provides that subclause (1) is not to be used to allow proofs of evidence to be given in legal or administrative proceedings.

151. Subclause (3), like subclause 57(4), prevents documentary evidence of a representation which is covered by subclause 57(3) from being tendered before the conclusion of the examination in chief of the maker unless the court gives leave.

Clause 60 - Notice to be given

152. Subclause (1) protects the party against when hearsay evidence would otherwise be admissible in civil and criminal proceedings where the maker is not available (clause 56, 58) by requiring notice in writing to be given to all other parties. It also requires notice to be given where a party in a civil trial could call the person who made the representation but, for example, to save costs, would prefer not to do so (subclause 57(2)). Regulations provide for the form of notice and for the time within it is to be given.

153. Subclause (2) allows the court to waive notice requirements if notice has not been given.

154. Subclause (3) deals with civil proceedings where the maker of the previous representation is available to give evidence but the party wishing to tender the hearsay evidence does not propose to call the maker. In these circumstances, any other party can object to the evidence being tendered in whole or in part.

155. Subclause (4) requires the objection to be made on specified grounds.

156. Subclauses (5) and (6) allow the court to determine the objection before the hearing or at the hearing and provided that, if the objection is held to be unreasonable, the court may order the objecting party to pay costs on a solicitor/client basis, including the costs incurred in having the maker attend to give evidence.

Subdivision C - Other hearsay

157. This Subdivision deals with more remote hearsay and provides a limited number of exceptions to the hearsay rule for such evidence.

Clause 61 - Exception: business records

158. This clause covers documents that are or form part of the records of, or kept by, a business, including businesses no longer in existence and records that have ceased to be business records.

159. Subclause (1) creates an exception to the hearsay rule for business records in the following circumstances. The previous representation in the document concerned must have been made or recorded in the course of or for the purposes of a business: paragraph (1)(b). It must have been made by a person who, when it was made, had or might reasonably supposed to have had personal knowledge of the asserted fact or the person who made it must have made it on the basis of information directly or indirectly supplied by a person who had or might reasonably supposed to have had personal knowledge of the asserted fact.

160. Subclause (2) provides that this exception to the hearsay rule is not to apply for proofs of evidence.

161. Subclause (3) provides an exception to the hearsay rule for evidence that there is no record in a record keeping system of the happening of an event of the kind normally recorded in the system.

Clause 62 - Exception: contents of tags, labels, &c.

162. This clause creates an exception to the hearsay rule for the contents of tags and labels on documents or things. For example, the fact that particular goods bear a manufacturer's brand name would be admissible to prove that they were manufactured by the manufacturer.

Clause 63 - Exception: telecommunications

163. This clause covers the use, for hearsay purposes, of telecommunications messages.

164. Its operation is best seen by example. Under present law, the hearsay rule prevents the contents of an incoming telex being used to prove the identity of the person from whom the telex came, where and when the telex was sent or the identity of the person to whom the telex is addressed. This clause provides an exception to the hearsay rule for each of these matters.

165. It covers all forms of telecommunications.

Clause 64 - Exception: reputation as to certain matters

166. This clause reflects and rationalises, existing common law rules that provide an exception to the hearsay rule for a very limited class of reputation evidence:

reputation as to marriage

reputation as to family history or family relationships

reputation as to public or general rights.

167. Subclause (2) restricts the benefit of this clause, in a criminal proceeding, to an accused. It allows, however, the prosecution to rebut evidence of that kind admitted for the accused.

Clause 65 - Exception: interlocutory proceedings

168. This clause reproduces provisions presently found in the Federal Court Rules and rules of other courts abrogating the hearsay rule in interlocutory proceedings. Details of source of the information and belief on which the evidence of the representation was based and on which the previous representation concerned was based must be given.

Division 2 - Opinion evidence

169. This Division provides for a general rule of exclusion of evidence of opinions. Exceptions are provided for 'expert' opinion evidence and for a limited class of non-expert opinion evidence. In addition, two technical and restrictive rules governing opinion evidence are abolished.

Clause 66 - Exclusion of opinion evidence

170. Subclause (1) provides that opinion evidence is not to be admissible to prove the fact asserted in the opinion - the exclusionary rule.

171. Subclause (2) allows opinion evidence that is relevant and admissible for other purposes to be used to prove the existence of the fact asserted in the opinion. In this respect, it is similar to subclause 51(3).

Clause 67 - Exception: lay opinions

172. At times it is necessary and useful to permit a witness to express a lay opinion. Evidence is allowable under this exception in the form of opinion if it is based on the person's own perceptions of the event in question and it is necessary to give evidence in that form to obtain an adequate account of the person's perception.

Clause 68 - Exception: opinions based on specialised knowledge

173. This clause provides an exception to the opinion rule for 'expert' opinion evidence.

174. For the 'expert' opinion to be of value there must be a sufficient and relevant expertise possessed by the person expressing the opinion. Clause 68 simply requires that the person has specialised knowledge about the matter in question and that that knowledge be based on training, study or experience. It is not necessary for the person to be formally qualified (for example, by holding a university degree) in order to be able to give expert evidence - relevant experience, for example, will suffice.

175. The evidence given must be wholly or substantially based on the person's specialised knowledge.

Clause 69 - Ultimate issue and common knowledge rules abolished

176. This clause abolished two technical rules concerning opinion evidence.

Ultimate issue rule. Under present law, a witness is not allowed in some circumstances to give evidence in the form that goes directly to the matter to be decided by the court. But in other circumstances they are so allowed. For example, the psychiatrist can express an expert opinion about the sanity of the accused where that is in issue. This rule is unnecessarily restrictive and is abolished.

Common knowledge rule. An ancient rule of the common law prohibits witnesses from giving evidence of opinion about matters of common knowledge. Like the ultimate issue rule, it is more honoured in the breach than the observance.

Division 3 - Admissions

177. This division deals with admissions (for definition see clause 3). It provides generally for an exception to the hearsay and opinion rules for admissions and sets out a number of specific rules to be complied with in criminal proceedings for confessions by accuseds.

Clause 70 - Interpretation: sound recording

178. This clause defines sound recording to include video recordings that have sound attached.

Clause 71 - Hearsay and opinion rules: exception for admissions

179. Subclause (1) provides an exception to the hearsay and opinion rules for admissions and for statements made at or about the time of the admission in question that are reasonably necessary to understand the admission.

180. Subclause (2) applies where an admission comes within no other exception but subclause (1) for the opinion and hearsay rules. In such a case, the admissions, if admitted, can only be used in relation to the case of the party who made the admission and the case of the party who adduced the evidence of the admission.

181. Subclause (3) allows other parties to consent to the use of the evidence of the admission.

Clause 72 - Exclusion of admissions influenced by violence, &c.

182. This clause applies both in civil and criminal proceedings. It makes inadmissible admissions unless it is shown that the admission was not influenced by violent, oppressive, inhuman or degrading conduct of any kind, or by a threat of such conduct.

Clause 73 - Criminal proceedings: reliability of admissions by defendants

183. This clause applies to confessions by accused persons in criminal trials.

184. Subclause (2) provides that the admission is not admissible unless the circumstances in which it were made make it unlikely that the truth of the admission was adversely affected. Subclause (3) is included to make it clear that the question whether the admission is true is irrelevant to this inquiry.

185. Subclause (4) sets out a number of matters for the court to take into account in deciding whether the circumstances in which the admission was made make it unlikely that the truth of the admission was adversely affected. These circumstances include the condition and characteristics of the person who made the admission and the nature of any questioning, threats, promises and representations made.

Clause 74 - Criminal proceedings: recording of admissions by defendant

186. This clause sets out additional criteria to be satisfied for confessions by accused persons made in the course of police or official questioning and made at a time when they were under suspicion of having committed an offence.

187. Subclause (2) requires independent evidence of the making of the admission to be available to the court. That independent evidence may be

a sound recording or, if it was not reasonably practicable, a 'readback' or

independent evidence from a lawyer, or other person selected by the suspect, who was present while the questioning was conducted and the admission made.

If this kind of evidence is not available, evidence of the admission will not be admissible unless the court is satisfied that it was not reasonably practicable to make those recordings or to have those persons available.

188. Subclause (3) provides an exception for the hearsay rule and the opinion rule for 'readbacks'.

189. Subclause (4) makes a confession inadmissible unless the suspect was, before the confession was made, given the usual caution. This is a statutory enactment of a central requirement of 'the Judge's Rules'.

Clause 75 - Exclusion of records of oral questioning

190. This clause makes inadmissible any document purporting to be a record of an interview and unsigned by the person interviewed.

Clause 76 - Admissions made with authority

191. This clause is an ancillary provision. It sets out circumstances in which admissions made by certain employees or agents of parties can be treated as having been made by the parties themselves. The purpose of the clause is limited to determining whether a particular statement can be treated as an admission by a party or not and not whether evidence of the admission is admissible. That question is to be resolved by the rules of admissibility.

192. The representations covered by this clause are representations made by

persons who have authority from the party to make statements on behalf of the party in relation to the matter covered in the representation

employees or other agents about matters within the scope of their employment or authority

representations made in furtherance of a common purpose with a party.

193. The court may make a finding that a representation is one of these kind if it is reasonably open to do so.

194. Subclause (2) provides an exception for the hearsay and opinion rules for evidence of representations made by the maker of an admission concerning that person's employment, authority or common purpose. The exception is only available for the purposes of the operation of subclause (1).

Clause 77 - Proof of making of admission

195. This clause clarifies the question of the standard of proof required in deciding whether an admission was made by a particular person. It applies for the purpose only of deciding whether to admit the evidence of the admission.

Clause 78 - Evidence of silence

196. Subclause (1) prevents unfavourable inferences, such as an inference of guilt, being drawn from evidence of silence in the face of police or other official questioning.

197. Subclause (2) provides that where the only use that could be made of such evidence would be to draw such an inference the evidence is not admissible.

198. Subclause (3) provides an exception for cases where, for example, failure to answer a question is itself an offence.

Clause 79 - Discretion to exclude admissions

199. This clause enacts an exclusionary discretion similar to that known as the 'the Lee discretion' in existing law.

200. It provides that if, having regard to the circumstances in which an admission was made, it would be unfair to an accused to use evidence of the admission in the prosecution case, the court may refuse to admit or refuse to admit it to prove a particular fact.

Division 4 - Evidence of judgments and convictions

201. This Division changes the rule known as the rule in Hollington v Hewthorn.

Clause 80 - Exclusion of evidence of judgments and convictions

202. This clause provides that evidence of the decision in a legal or administrative proceeding may not be admitted or used to prove the factual basis of that decision.

Clause 81 - Exceptions

203. Subclause (1) provides an exception for evidence of a grant of probate or letters of administration to prove death, date of death or the due execution of a will.

204. Subclause (2) applies to civil proceedings only. It provides an exception for convictions of a party or a person through or under whom a party claims. The exception does not include convictions under review, convictions that have been quashed or set aside or convictions in respect of which pardons have been given.

205. Subclause (3) applies in cases where any of these exceptions apply. In such a case, a further exception to the hearsay rule and the opinion rule is provided for evidence covered by the exception. Otherwise, evidence coming within the above exceptions would be excluded by those rules.

Clause 82 - Savings

206. This section preserves existing law that enables evidence of convictions to be admitted in defamation proceedings and the rules relating to judgments in rem, res judicata and issue estoppel.

Division 5 - Evidence of conduct and character relevant to issues

207. This Division applies to evidence of prior conduct of parties and of witnesses and to evidence of character of parties and of witnesses. It only applies so far as such evidence is relevant to the issues in a trial. Evidence of conduct and character that is relevant to the credibility of parties and witnesses as witnesses is dealt with in Division 6.

Subdivision A - Preliminary Clause 83 - Interpretation

208. This clause provides that a reference in this Division to the doing of an act includes a reference to the failure to do an act.

Clause 84 - Application

209. Subclause (1) excludes from this Division evidence that relates only to the credibility of parties and witnesses as witnesses.

210. Subclause (2) excludes the operation of the Division in bail proceedings.

211. Subclause (3) provides that the Division is not to apply to evidence of character, conduct and tendencies where such character, conduct and tendencies are facts in issue in the proceedings.

Clause 85 - Use of evidence for other purposes

212. This clause provides that evidence which but for this Division would be admissible may not be used to Prove prior conduct or character or tendencies.

Subdivision B - Tendency evidence

Clause 86 - Exclusion of tendency evidence

213. This clause provides an exclusionary rule for character, reputation or conduct evidence, or evidence of a person's tendencies, to prove particular tendencies of the person - for example, evidence of a person's prior convictions for assault to prove he has a tendency to assault or otherwise break the law. This rule is described as the tendency rule.

Subdivision C - Conduct evidence

Clause 87 - Exception: conduct (including of accused) to prove tendency

214. This clause provides an exception to the tendency rule for evidence of prior conduct which, in this context, includes evidence that a person had a particular state of mind. The exception is available where such evidence is adduced to prove that the person concerned had some other particular state of mind or did some other particular act. All the acts or states of mind, however, must be substantially and relevantly similar.

Clause 88 - Exclusion of evidence of conduct (including of accused) to prove improbability of co-incidence

215. This clause is complementary to clause 87. It provides for the case where evidence of prior conduct is said to be relevant, not because the acts or states of mind are substantially and relevantly similar, but because it is improbable that a particular series of events occurred co-incidentally. In these circumstances, evidence that a particular person did one of the acts in the series will tend to show that he or she did all of the acts. Persons may, for example, admit their involvement in the series of events but assert they were accidents. A consideration of the series of events may lead to the conclusion that they could not have been accidents - this would be too improbable.

216. This clause provides a rule to control the admission of such evidence. It takes the form of an exclusionary rule excluding such evidence unless the court determines that it is reasonably open to find that the events occurred and the person concerned could have been responsible for them. In addition, the court must find that the events, and the circumstances in which they occurred, are substantially and relevantly similar.

Clause 89 - Further protections: prosecution evidence of conduct of accused

217. This clause applies in criminal trials and applies in addition to clauses 87 and 88. It applies to evidence adduced by the prosecutor against an accused. It rationalises existing law.

218. Subclause (2) provides a further exclusionary rule for such evidence in addition to the tendency evidence rule and the rule in section 88. The additional criteria that must be satisfied are that

the existence of the fact in issue as to which the evidence is led must be substantially in dispute,

the evidence adduced must have substantial probative value.

219. Subsection (3) sets out criteria for the court to consider in determining whether the evidence has substantial probative value. In particular, the criteria call attention to the question whether the act or state of mind is unusual or occurs infrequently and the length of time between the criminal act in issue in the proceedings and the act of which evidence is given.

Clause 90 - Notice to be given

220. Subclause (1) provides that parties may not make use of clause 87 or 88 unless they have first given notice in accordance with the regulations of their intention to do so, Subclause (2) allows the court to relax subsection (1) on application.

Subdivision D - Character evidence

221. This Subdivision deals specifically with evidence of character adduced as being relevant to the issues in a particular trial. (As to evidence relevant to the credibility of witnesses, see Division 6 below).

Clause 91 - Exception: character of accused

222. This clause applies in a criminal proceeding. It rationalises existing law.

223. Subclause (2) provides an exception to the hearsay rule, the opinion rule and the tendency rule for evidence adduced by a defendant about his or her own good character.

224. Subclauses (3) and (4) provide a similar relaxation of the hearsay rule, opinion rule and the tendency rule for evidence to rebut evidence covered by subclause (2).

Clause 92 - Exception: character of co-accuseds

225. This clause applies in a criminal proceeding.

226. Subclause (1) provides an exception to the hearsay rule and the tendency rule for expert opinion evidence about a defendant adduced by another defendant.

227. Subclause (2) provides for a similar exception to the hearsay rule, the opinion rule and the tendency rule for evidence to rebut evidence covered by subclause (1).

Clause 93 - Cross-examination of accused by leave only

228. This clause provides that cross-examination of accuseds on matters arising out of evidence to which clauses 91 and 92 apply may only be by leave of the court.

Division 6 - Credibility

229. This Division deals with evidence that is relevant because it affects the credibility of witnesses.

Clause 94 - Exclusion of evidence relevant to credibility

230. Subclause (1) imposes a general rule that credibility evidence is not admissible - the credibility rule.

231. Subclause (2) allows evidence that is relevant to credibility but which is admitted for some other reason to be used for the credibility purpose.

Clause 95 - Exception: character of accuseds

232. This clause applies in criminal proceedings only. It rationalises existing law.

233. Subclause (2) provides an exception for the hearsay rule, the opinion rule and the credibility rule for evidence led by the accused of his or her good character.

234. Where such evidence has been admitted, subclauses (3) and (4) provide similar exceptions for character evidence led by the prosecution or a co-accused in rebuttal.

Clause 96 - Exception: cross-examination as to credibility

235. Subclause (1) provides a general exception to the credibility rule for all witnesses. The exception applies to evidence adduced in cross-examination; it authorises the continuation of the present practice which allows attacks on credit during cross-examination of witnesses and parties.

236. Subclause (2) imposes a requirement of substantial probative value as to credibility for evidence the only relevance of which in the trial is to the credibility of a witness.

237. Subclause (3) sets out two particular matters to which the court must have regard in determining whether the evidence will have substantial probative value:

whether the evidence tends to show the witness lied while under an obligation to tell the truth

the period of time that has elapsed since the acts or events to which the evidence relates.

Clause 97 - Further protections: cross-examination of accused

238. The clause provides specific protections for the accused who gives sworn evidence in the criminal trial. The main protection is the requirement in subclause (2) that the leave of the court be obtained for cross-examination of the accused on matters relevant only to the accused's credibility.

239. Subclause (3) sets out three cases where leave need not be obtained before cross-examination as to credit may occur:

questioning as to whether the accused is biased or has a motive to be untruthful

questioning about the accused's recollection about the matters in issue

questioning about prior inconsistent statements.

240. Subclause (4) prevents the court giving leave for cross-examination of the accused as to credit unless the accused has adduced evidence to show his or her own good character or has given evidence attacking the credit of a prosecution witness and that evidence was adduced solely or mainly for that purpose.

241. Subclause (5) provides that an attack on prosecution witness about events relating to the offence, or the investigation into the offence concerned, will not mean the defendant's own credibility can be attacked in cross-examination.

242. Subclause (6) deals with an attack by an accused on credibility of a co-accused. Again, leave to cross-examine on the credibility is required and can only be given if the accused to be cross-examined has given evidence adverse to the other accused.

Clause 98 - Where unsworn evidence given

243. This clause applies the rules set out in clauses 96 and 97 to the case where the accused only gave unsworn evidence and cannot be cross-examined. They apply as if the accused had given sworn evidence.

Clause 99 - Exception: rebuffing denials by other evidence

244. Subclause (1) provides for an exception to the credibility rule to cover evidence adduced from a witness that another witness is biased or has a motive to be untruthful, has a prior conviction or has made a prior inconsistent statement. The witness whose credibility is attacked must have denied the substance of the evidence when the witness was cross-examined.

245. Subclause (2) provides a similar exception to the credibility rule for evidence adduced from a witness that another witness is not or was not aware of the matters to which his or her evidence related or knowingly or recklessly lied while under an obligation to tell the truth. In addition to the requirements imposed by subclause (1), the leave of the court must also be obtained.

Clause 100 - Exception: application of certain provisions to maker of representations

246. This clause covers the credibility of the maker of hearsay statements evidence of which has been admitted under an exception to the hearsay rule. Even if the maker of the hearsay statement is not called to give evidence, and so cannot be cross-examined, this clause provides an exception to the credibility rule for evidence that could have been admitted if the maker of the statement had given evidence and had been cross-examined.

Clause 101 - Exception: re-establishing credibility

247. Subclause (1) provides an exception to the credibility rule for evidence adduced in re-examination (clause 42).

248. Subclause (2) provides an exception to the credibility rule for evidence mentioned in sections 98 and 100. However, the court must give leave to adduce the evidence.

249. Subclause (3) gives two examples of cases in which this clause will apply:

a prior consistent statement will not be covered by the credibility rule if it is tendered where evidence of a prior inconsistent statement has been admitted

evidence of a prior consistent statement will not be covered by the credibility rule if it is suggested that a witness' evidence has been fabricated.

Division 7 - Identification evidence

250. This Division provides a new set of exclusionary rules for eye-witness identification evidence in criminal trials. These rules are necessary because of the unreliability and fallibility of eye-witness identification evidence and the grave danger that its value will be significantly over estimated.

Clause 102 - Application of Division

251. This clause restricts the application of this Division to criminal proceedings only.

Clause 103 - Exclusion of identification evidence

252. Subclause (1) provides the basic rule for the admissibility of identification evidence:

an identification parade that included the defendant must have been held

the identification must have been made without the person who made it having been intentionally influenced. If, however, it would not have been reasonable to have held an identification parade, non-compliance with the requirement to hold an identification parade is excused.

253. Subclause (2) sets out some of the matters to be taken into account in determining whether it was reasonable to have held an identification parade:

the nature and gravity of the offence

the importance of the evidence

the practicality of holding identification parades. This will include, where the defendant refused to co-operate, considerations such as the reason and manner of refusal. It will also include the time of the identification and its relation to the time of the offence

the nature of the relationship between the accused and the person who made the identification.

254. Subclause (3) deals with the situation where the accused refuses to co-operate in the identification parade unless his or her lawyer is present. If there were reasonable grounds for believing that it was not reasonably practical for the lawyer to be present, there will be no requirement to hold a parade.

255. Subclause (4) prevents the argument being put that, because pictures were available, the requirement to hold a parade need not have been complied with.

Clause 104 - Exclusion of evidence of identification by pictures

256. This clause deals with identification evidence where the identification was made after examining photos or 'Identikit' pictures or the like.

257. Subclause (2) applies where the accused was in custody while the photos, etc, were being examined. It imposes alternative requirements on the admissibility of identification evidence in this case. First, the picture of the accused that was examined must have been taken after he or she was taken in to custody. Alternatively, the pictures examined must have included a reasonable number of 'non-police' photos. The purpose of this provision is to try to ensure that no inference can be drawn that, because the accused was identified from police photos, he or she therefore had a criminal record.

258. Subclause (3) provides that the second of these tests - the requirement of a reasonable number of non-police photographs - is to apply in cases of photo-identification where the accused was not at the time in custody.

259. Subclause (4) relaxes the requirements of this clause for prosecution evidence in rebuttal of evidence about identification by pictures adduced by the accused.

260. Subclause (5) is an interpretation section extending the provisions of the clause to photographs as well as other pictures.

Clause 105 - Directions to juries

261. Subclause (1) requires the judge, if requested by the accused, where identification evidence has been admitted, to instruct the jury in detail about the need for caution before accepting identification evidence.

262. Subclause (2) directs the trial judge to warn the jury that it should not find the accused guilty on the basis of identification evidence unless there are special circumstances that tend to support the identification or other substantial evidence tending to prove that guilt.

263. Subclause (3) makes it explicit that 'special circumstances' in subclause (2) include:

that the person identifying the accused personally knows the accused

the identification being made on the basis of a characteristic that is unusual, such as that the accused is an albino.

264. Subclause (4) provides that if it is essential to a finding of guilt that eye-witness identification evidence be accepted, but there are no special circumstances or substantial evidence as required by subclause (2), the trial judge must direct the acquittal of the accused.

265. Subclause (5) requires the court to advise accuseds who are not legally represented of their rights under this clause.

Division 8 - Privileges

266. This Division deals with several privileges, or rights to refuse to answer questions. Subdivision A deals with the client legal privilege (legal professional privilege). Subdivision B deals with other privileges:

a general privilege for confidential communications and records

privilege against self-incrimination.

Subdivision C deals with evidence which is to be excluded in the public interest:

the reasons for judicial, etc, decisions

evidence of matters of state

evidence of settlement negotiations.

Subdivision A - Client legal privilege

Clause 106 - Client legal privilege

267. Subclause (1) protects from disclosure in court evidence of communications passing between clients and their legal practitioners, and documents and communications made by or passing between the legal practitioners. The communications of documents must have been made or prepared for the dominant purpose of providing legal advice to the client. The client must apply to the court to invoke the protection: the duty of the legal practitioner under the terms of his or her retainer to invoke that protection is retained.

268. Subclause (2) applies the same regime to the case of legal services in connection with litigation. It also protects communications between third persons and the client and third persons and the legal practitioner.

269. Subclause (3) provides a similar protection to that in subclause (2) for unrepresented litigants in connection with litigation in which they are involved.

Clause 107 - Loss of client legal privilege

270. This clause sets out the circumstances in which client legal privilege can cease to apply.

271. Subclause (1) allows the client to consent to the privilege not being applied.

272. Subclause (2) provides that the privilege does not apply where the evidence concerned relates to the intentions or competence of a deceased client or party.

273. Subclause (3) provides that the protection is lost if to enforce it would prevent the court from enforcing an order of a court.

274. Subclause (4) applies in criminal trials. It provides that the protection will not prevent an accused from adducing any evidence unless the evidence concerns communications made or documents prepared in connection with a co-accused's case, or the case of a person who is being prosecuted for a related offence in connection with that prosecution.

275. Subclause (5) provides that client legal privilege does not apply in respect of a communication if the making of that communication affected a right of a person.

276. Subclause (6) provides that the privilege is lost if the client has already voluntarily disclosed the substance of the evidence. However, disclosures in the course of making the communication, as a result of duress or deception and disclosures under compulsion of law do not cause the privilege to be lost.

277. Subclause (7) covers the case of disclosures to which subclause (6) applies where they are made by employees or agents of the client or a legal practitioner. In this case, the privilege is only lost if the employee or agent was authorised to make the disclosure concerned.

278. Subclause (8) provides that the privilege is lost if the document containing the disclosure has been used by a witness to try and revive his or her memory in court.

279. Subclause (9) provides that the privilege is lost if the substance of the evidence has been disclosed with the express or implied consent of the client. A disclosure by a client to another client of the same lawyer will not be regarded as disclosure under this provision if the matter disclosed relates to a matter in which the lawyer is acting for both (subclause 10).

280. Subclause (11) covers the case of co-clients of the same lawyer. In this case, the client legal privilege will not prevent either of the co-clients adducing evidence in proceedings relating to a matter in which the lawyer acts for both of them.

281. Subclause (12) provides that client legal privilege is lost for communications and documents made and prepared in furtherance of a fraud, an offence, an act that renders a person liable to a civil penalty or a deliberate abuse of statutory power.

282. Subclause (13) provides that, where the commission of the fraud, the offence, the act or abuse of power is a fact in issue in the trial, if there are reasonable grounds for so finding, the court may find, that the fraud, etc, occurred but only for the purpose of determining whether client legal privilege is lost.

283. Subclause (14) provides that, where client legal privilege in relation to one piece of evidence is lost, it is also lost in relation to evidence of other communications necessary to understand the first evidence.

Clause 108 - Interpretation

284. This clause provides for the interpretation of three expressions used in this Subdivision.

client and party are defined to include employees, agents, legal representatives of insane persons, legal representatives of deceased persons and successors in title,

legal practitioner is defined to include employees and agents of legal practitioners.

Subdivision B - Other privileges

Clause 109 - Privilege in respect of confidential communications and records

285. This clause provides a privilege in respect of confidential communications and records. The court may prevent evidence of confidential communications or records being given if the desirability of admitting the evidence is outweighed by the likelihood of harm to a person by whom, to whom, about whom or on whose behalf the communication was made or the record was prepared, harm to the confidential relationship concerned or harm to relationships of that kind, having regard to the extent of the harm.

286. Subclause (2) sets out matters that the court should take into account, including:

the importance of the evidence

the extent to which the contents of the communication have already been disclosed

whether interested persons have given consent to disclosure and

whether the court can limit publication of the evidence.

287. This clause will provide a means for testing claims to privilege such as the claim of a doctor to refuse to answer questions about his or her patients and the claim of a newsperson to refuse to disclose his or her sources.

288. Subclause (3) provides that this privilege does not apply to communications

that affect a right of a person

in furtherance of the commission of a fraud, an offence an act that makes a person liable to a civil penalty, or an abuse of statutory power.

289. Subclause (4) provides that where the commission of the fraud, the offence, the act or abuse of statutory power is a fact in issue in the trial, if there are reasonable grounds for so finding the court may find that the fraud etc occurred but only for the purpose of determining whether the privilege is lost.

Clause 110 - privilege in respect of self-incrimination in other proceedings

290. This clause provides for a privilege against self-incrimination.

291. Subclause (1) provides for an objection by a witness against answering a question on the grounds that the answer may tend to show that the witness has committed an offence or is liable to a civil penalty. If there are reasonable grounds for the objection, the court is to inform the witness that he or she has a choice. The question may not be answered, but if it is answered the court will give the witness a certificate under this section. The court is also to advise the witness of the effect of that certificate.

292. Subclause(2) provides that the court shall not require the witness to give evidence but if the witness choose to do so, the court shall give the witness a certificate.

293. Subclause (3) covers the case where the objection has been overruled but it later becomes apparent that the reasonable grounds for the objection existed: the witness is then to be given the certificate sought.

294. Subclause (4) provides that evidence in respect of which a certificate is given under this section is not admissible in legal or administrative proceeding, including in a court of a State or Territory. Prosecutions for perjury are excluded.

295. Subclause (5) provides that the privilege against self-incrimination is not available in a criminal trial for questions that tend to show that the accused committed the offence for which he or she is being prosecuted.

Subdivision C - Evidence excluded in the public interest

Clause 111 - Exclusion of evidence of reasons for judicial, &c., decisions

296. Subclause (1) prevents evidence of reasons for decisions made by judges or arbitrators, or in their deliberations, being given by the judge or arbitrator, or by, for example, the judge's associate, in a proceeding to which this Act applies that is not the proceeding concerned.

297. Subclause (2) makes it clear that subclause (1) does not apply to published reasons for decision.

298. Subclause (3) covers decisions by jurors. It applies a similar rule to the rule set out in subclause (1).

299. Subclause (4) provides exceptions for both these rules for

perjury prosecutions, or prosecutions for interfering with the course of justice

embracery (which includes misconduct by jurors in the jury room)

attempting to pervert the course of justice

offences related to any of the foregoing

contempt of court

appeals.

Clause 112 - Exclusion of evidence of matters of state

300. This clause covers evidence which is broadly classed as evidence of matters as a state, including such matters as international relations, defence and national security, law enforcement and inter-governmental relations (see subclause (2)).

301. Subclause (1) requires the court to prevent evidence of these matters being given if the public interest in admitting the evidence is outweighed by the public interest in preserving the secrecy or confidentiality of it.

302. Subclause (3) sets out some matters that the court shall take into account including the likely effect of the evidence being adduced, whether the substance of the evidence has been published and the means available to the court to limit further publication of the evidence.

303. Subclause (4) allows the court to inform itself in relation to its powers under this clause in any way it thinks fit.

304. Subclause (5) ensures that references to States in this clause include references to Territories.

Clause 113 - Exclusion of evidence of settlement negotiations

305. Subclause (1) provides that evidence may not be adduced or given of communications made between, or documents prepared by, persons in dispute, either with themselves or with a third party, in connection with and during attempts to settle the dispute.

306. It would, for example, prevent evidence being given of negotiations to settle a claim where, in the course of the negotiations, admissions were made by one of the parties.

307. Subclause (2) sets out the cases where this rule is not to apply:

where the parties have consented

the substance of the evidence has already being disclosed with express or applied consent

the communication or document was an open offer to settle and began the negotiations

the issue in dispute to which the communication relates has been settled

the evidence tends to contradict or qualify evidence already admitted about the course of settlement negotiations

the communication affects the right of a person

the communication was made in furtherance of a fraud, an offence, an act that renders a person liable to a civil penalty or an abuse of statutory power.

308. Subclause (3) provides that the privilege is lost for communications and documents made and prepared in furtherance of a fraud, an offence, an act that renders a person liable to a civil penalty or a deliberate abuse of statutory power.

309. Subclause (4) provides that where the commission of the fraud, the offence, the act or abuse of statutory power is a fact in issue in the trial, if there are reasonable grounds for so finding, the court may find that the fraud etc occurred but only for the purpose of determining whether the privilege is lost.

310. Subclause (5) restricts the operation of this provision to disputes for which legal remedies are available (non-justiciable disputes are not covered). It excludes negotiations in connection with criminal proceedings. References to parties in dispute include references to employees and agents of those parties.

Subdivision D - General

Clause 114 - Court to inform of rights, &c.

311. This clause provides that the court must satisfy itself that witnesses or parties are aware of their rights under this Division where it appears that there may be grounds for objection by them.

Clause 115 - Court may inspect, &c., documents

312. This clause makes it explicit that the court can call for and examine any document in respect of which a claim for privilege under this Division is made to determine the claim.

Clause 116 - Certain evidence inadmissible

313. This clause renders inadmissible evidence that may not be adduced under this Division.

Division 9 - Discretions to exclude evidence

314. This Division provides three discretions which a court can use to exclude evidence.

Clause 117 - General discretion to exclude

315. This clause provides a general discretion to exclude relevant evidence where the probative value of the evidence is substantially outweighed by the danger of unfair prejudice or confusion or the danger of misleading a court or the danger that there will be an undue waste of time if the evidence is admitted.

316. The clause reflects considerations which, at the present time, are taken into account by courts in asking whether evidence is 'relevant'. The clause makes explicit the policies assumptions underlying the way in which courts presently determine relevance questions.

Clause 118 - Criminal proceedings: discretion to exclude prejudicial evidence

317. This clause applies in criminal trials.

318. It re-states the present exclusionary discretion for prosecution evidence the probative value of which is outweighed by the danger of unfair prejudice to the accused.

319. The accused must ask the court to exercise its powers under this provision (compare clause 119).

Clause 119 - Discretion to exclude improperly obtained evidence

320. This clause provides a discretionary exclusion for evidence obtained improperly, unlawfully or in consequence of an impropriety or breach of the law. It applies in both civil and criminal trials. It reflects, with some modifications, the present exclusionary discretion known as the rule in Bunning v Cross. The main difference is the placing of the onus of proof on the party seeking to have the illegally or improperly obtained evidence admitted.

321. Subclause (1) requires the court not to admit evidence obtained in this way unless the desirability of admitting it outweighs the undesirability of admitting evidence that has been obtained in the particular way in which the evidence was obtained.

322. Subclause (2) takes up this rule as it applies in the particular context of admissions. If the admission was made during or as a result of questioning and the questioning was conducted in circumstances that would substantially impair the ability of the person questioned to respond rationally (for example, by being deprived of sleep for an extended period of time), or knowingly false statements were made to induce the admission, the evidence is to be taken to have been obtained improperly.

323. Subclause (3) sets out some of the matters that the court should take into account including:

the probative value of the evidence and its importance

the gravity of the impropriety or breach of the law and whether it was deliberate or

reckless

whether the impropriety or breach of the law breached human rights

whether other punishment or action is to be taken in relation to the impropriety or breach of the law and

the difficulty, if any, of obtaining the evidence in any other way.

PART VI - OTHER ASPECTS OF PROOF

324. This Part is divided into six Divisions. The first deals with judicial notice (that is, matters upon which no formal evidence need be led). The second provides for the proof of the contents of documents, either by the original document or through copies. Both those divisions are exhaustive statements of the law. Division 3 sets out a number of presumptions in particular areas to make proof easier. Division 4 sets out the rules for standard of proof. Divisions 5 and 6 deal with requirements for corroboration and warnings.

Division 1 - Judicial notice

Clause 120 - Matters of law

325. Subclause (1) renders it unnecessary to lead evidence about matters of law, including Commonwealth, State or Territory legislation including subordinate legislation that is published or notified in a Government Gazette.

326. Subclause (2) provides that the judge can inform himself or herself about such legislative matters in any way that the judge thinks fit.

Clause 121 - Matters of common knowledge, &c.

327. Subclause (1) renders it unnecessary to tender evidence about knowledge that is not reasonably open to question and which is common knowledge in the locality where the proceedings are being heard or can be verified by consulting authoritative sources.

328. For example, under this clause it would not be necessary to lead formal evidence, in a trial in a federal court sitting in Sydney, about the location of the Opera House or the Harbour Bridge. Nor would it be necessary, in any trial, to tender evidence about commonly known scientific matters.

329. Subclause (2) provides that the judge may obtain that knowledge in any way that he or she thinks fit.

330. Subclause (3) requires the court including the jury to take that knowledge into account in deciding the case.

331. Subclause (4) provides that the judge must give the parties an opportunity to make submissions on the application of this clause to the extent necessary to ensure a fair hearing for the parties.

Clause 122 - Certain Crown certificates

332. Certain matters of international affairs, such as whether a particular foreign government is recognised by Australia, or whether a particular person is the Head of State of a foreign country, can be certified by or on behalf of the Crown (usually by the Minister for Foreign Affairs). The courts will normally accept those certificates as conclusive. This clause preserves that position.

Division 2 - Documents

Clause 123 - Interpretation

333. Subclause (1) defines 'document in question' as the document the contents of which are sought to be proved.

334. Subclause (2) allows one document to be taken to be a copy of another document, even if it is not an exact and identical copy, if it is identical in all relevant respects.

Clause 124 - "Best evidence" rule abolished

335. This clause abolishes the common law that restricts the way in which contents of documents can be proved. Under that law, only in limited circumstances can copies be tendered if the original document is available. This Division provides a complete code on the way in which the contents of documents can be proved. 'Documents' is broadly defined (see clause 3).

Clause 125 - Proof of contents of documents

336. Subclause (1) sets out, in detail, the ways in which the contents of documents can be proved.

337. The document itself (the original or the document in question) can be tendered.

338. Admissions as to the contents by other parties can be tendered.

339. Documents produced by a device that reproduces the contents of documents, and that purport to be copies of the document in question can be tendered. This would include, for example, photocopies or multiple copies of a document run off a word processor.

340. Where the contents are not in visible form (for example tape recordings) or that are in code, a transcript of the words can be tendered.

341. A special facility is provided for modern documents such as computer disks and the like, where a device is needed to produce a readible copy of the information stored in the document. So in the case of computers, the computer print out, or the output, may be tendered.

342. A business record that is or purports to be a copy of or an extract from or summary of the document in question may be tendered. A document that is or purports to be a copy of such a business record may also be tendered.

343. Further special rules are provided in the case of public documents - official printed copies of the document may be tendered.

344. Subclause (2) makes it clear that all of these means of proving the contents of a document in question are open whether or not the document is available.

345. Subclause (3) provides additional means of proving the contents of documents that are not available. Copies, or extracts or summaries, may be tendered. Alternatively, oral evidence may be given.

Clause 126 - Documents in foreign countries

346. This clause applies where the document in question is in a foreign country. The more relaxed means of proof set out in paragraphs 125(1)(b)-(f) may only be used if notice has been given to the other parties two weeks before hand. The court may, however, relax this requirement.

Division 3 - Facilitation of proof

Clause 127 - Evidence produced by machines, processes, &c.

347. This clause refers to evidence that is produced wholly or partly by machines. It will normally be necessary to prove that the machine was working properly on the occasion when the evidence was produced and that no mistake was made in the production of the evidence.

348. Subclause (2) provides that the court shall presume that the machine used to produce the evidence was working properly and did what it was supposed to, on the occasion in question if it was reasonably open to find that the machine normally does so, or is of a kind that normally does so. Under this provision, for example, it will not be necessary to call an expert to prove that the photocopier that produced the photocopy normally completely copies documents and to call the operator to give detailed evidence that the machine was working properly on the occasion when the photocopy tendered was produced.

349. Subclause (3) relates to business records. Where the evidence is a business record and was produced by a machine used at that time for the purposes of the business, there will be an evidentiary presumption that the machine was working properly on the occasion when the document was produced.

350. Subclause (4) provides that documents produced for purposes that included the purposes of a legal proceeding are not covered by the presumption in subclause (3).

Clause 128 - Attestation of documents

351. This clause rationalises existing legislation. It dispenses with the need to call witnesses who attested to the execution of a document to give evidence about the execution of the document. The requirement of attesting witnesses giving evidence in the case of wills is specifically preserved.

Clause 129 - Gazettes, &c.

352. This clause presumes documents purporting to be government gazettes, including the government gazettes of States and Territories and papers printed by government printers to be what they purport to be and to have been published when they purport to have been published.

353. Subclause (2) covers similar documents that contain, or notify, the doing of some official act, It raises an evidentiary presumption of the validity of the act and the correctness of the statement of the publication of the date of which it was done.

Clause 130 - Seats and signatures

354. Subclause (1) provides for an evidentiary presumption for the authenticity and the validity of the affixing of seals, including Royal seals, government seals and seals of bodies corporate.

355. Subclause (2) provides a similar presumption in respect of seals of persons acting in official capacity.

356. Subclause (3) provides a similar presumption for the signature of persons acting in official capacities.

Clause 131 - Public documents

357. This clause raises an evidentiary presumption that a copy of, or an extract from or summary of, a public document purporting to be sealed or certified as such by a person who might reasonably be supposed to be the custodian of the document is a true copy extract or summary of the document.

Clause 132 - Documents produced from proper custody

358. This clause covers documents more than 20 years old produced from proper custody. It raises an evidentiary presumption that the document is what it purports to be and that it was duly executed or attested by the person who appears to have been executed or attested it.

Clause 133 - Labels, &c.

359. This clause raises an evidentiary presumption of the correctness of statements in tags or labels as to ownership or origin if the tag or label can reasonably be supposed to have been attached in the course of business.

Clause 134 - Posts and telecommunications

360. This clause establishes certain presumptions arising for the post and telecommunications.

361. Subclause (1) raises an evidentiary presumption that a letter or other object posted by pre-paid post was received at the address to which it was posted four days after having been posted.

362. Subclause (2) raises a presumption that telexes, telegrams and the like were received by the person to whom they were addressed 24 hours after being sent.

363. Subclause (3) raises a presumption that documents received from Telecom or produced by telex or the like machines correctly show the message transmitted. A further presumption applies as to the identity of the sender and the time at which and the place from which it was sent.

364. Subclause (4) defines postal article in the same way as the Postal Services Act 1975.

Clause 135 - Official statistics

365. This clause creates a presumption of authenticity for official statistics.

Division 4 - Standard of proof

Clause 136 - Civil proceedings: standard of proof

366. This clause applies in civil proceedings. It provides that the standard of proof in civil proceedings is proof on the balance of probabilities.

367. Subclause (2) is an inclusive list of matters that the court should take into account in determining whether a party's case has been proved on the balance of probabilities. These matters include the nature of the cause of action or the defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged.

Clause 137 - Criminal proceedings: standards of proof

368. This clause applies in criminal proceedings. Different standards of proof are specified, as at present, for the prosecution and the defence.

369. The prosecution's standard of proof is beyond reasonable doubt.

370. The standard of proof to be met by the accused is the same as the civil standard: proof on the balance of probabilities.

Clause 138 - Admissibility of evidence: standard of proof

371. This clause provides the standard of proof for questions relating to the admissibility of evidence. The standard of proof is specified as the civil standard: proof on the balance of probabilities. The importance of the evidence will be a matter to be taken into account in determining whether that standard has been reached.

Division 5 - Corroboration

Clause 139 - Corroboration requirements abolished

372. Subclauses (1) and (2) abolish the existing rules of law that require some classes of evidence to be corroborated. The only exception is the requirements for corroboration imposed in respect of perjury and similar offences.

373. Subclause (3) abolishes consequential rules of law that require warnings to be given to juries about the absence of corroboration.

Division 6 - Warnings

Clause 140 - Unreliable evidence

374. This clause applies in jury trials. It allows any party to ask the judge to give a warning to the jury about the unreliability of evidence of particular kinds and the need for care in determining what weight to attach to such evidence.

375. The broad classes of evidence to which the clause applies are:

hearsay evidence

evidence of admissions

eyewitness identification evidence

evidence affected by the age, illhealth or injury of a witness or other person

in criminal trials - evidence of persons involved in the alleged offence and oral evidence of questioning a suspect where no signed record of interview is tendered

evidence of the victims of sexual offences

in proceedings concerning deceased estates - evidence given by interested parties about matters about which the deceased could have given evidence.

376. Subclause (3) makes it clear that no particular form of words need be used giving the warnings.

377. Subclause (4) preserves other powers of the judge to give warnings, to, or to inform, the jury.

PART VII - MISCELLANEOUS

Clause 141 - Inferences

378. This clause allows the court to examine documents and things about which questions arise under this Bill and to draw reasonable inferences from them.

Clause 142 - Proof of certain matters by affidavit, &c.

379. This clause applies to evidence relevant to the admissibility of evidence to which clauses 56, 57 and 58 (exceptions to the hearsay rule for first hand hearsay) 61 (business records), 62 (tags and labels) or 63 (telecommunications) apply and to the admissibility of opinion and admission evidence.

380. Where, as a precondition to admissibility of a document, some particular fact has to be proved, this clause allows persons who have a position of responsibility in relation to the making or keeping of the document to give evidence about that fact.

381. Subclause (2) relaxes the admissibility rules to allow evidence of that kind to include evidence based on knowledge or belief or on information that the person has. Subclause (3) allows the evidence to be given by affidavit or, if the document is a public document, by a certificate in writing.

382. Subclause(4) requires that if the evidence is based on knowledge, information or belief, its source must be set out.

383. Subclause (5) requires the affidavit or statement to be served on all parties a reasonable time before the hearing and subclause (6) provides that the maker of the affidavit or statement need not attend court to be cross-examined unless required to do so by some other party.

Clause 143 - Request to produce documents or call witnesses

384. The admissibility rules in Part V require certain safeguards to protect parties against whom evidence is led from unfair prejudice. This clause provides one of those safeguards. It allows a party against whom evidence is or to be led

to request production examination testing and copying of documents and things

to request the tendering party to call witnesses to give evidence about the production of the document or the record system concerned

to arrange, in the case of, for example, computer programs, 'dummy runs'

where hearsay evidence is tendered - to request the tendering party to call the maker of the hearsay statement

where evidence of a previous conviction is tendered to prove the facts on which it is based- to request the tendering party to call a person who gave evidence at the trial where the conviction occurred.

385. Subclause (2) provides that, where such a request has been given to another party and, unreasonably, it has not been complied with, the court can order compliance or can refuse to admit the evidence concerned.

386. Subclause (3) makes it explicit that unavailability of persons or documents is sufficient excuse to fail to comply with the request under this clause.

387. Subclause (4) sets out matters that the court shall take into account. These include

the importance of the evidence

whether there is a genuine dispute about the evidence or reasonable doubt as to its authenticity or accuracy

whether other evidence is available

the time and cost involved in complying with the request.

Clause 144 - Views, &c.

388. Subclause (1) allows the judge, on application, to order that a demonstration, experiment or inspection be held.

389. The parties must be given a reasonable opportunity to be present and the judge and jury, if any, must also be present (subclause (2)).

390. Subclause (3) sets out some matters the court should take into account in exercising its powers under this clause. These include the extent to which the situation has changed since the relevant time - for example, whether the site to be inspected has been materially altered.

391. Subclause (4) prevents the court or the jury from conducting experiments on its own.

392. Subclause (5) makes it clear that the existing practice of the jury or the court inspecting exhibits may continue.

Clause 145 - Views, &c., to be evidence

393. This clause clarifies existing uncertainty of the law as to the status of 'a view', demonstration, experiment or inspection. The effect of the clause is that the view, etc, can be treated as evidence - the court can draw any reasonable inference from it.

Clause 146 - The voir dire

394. A voir dire is a hearing within a hearing to determine whether evidence should be admitted. By subclause (1) it is extended to hearings on the question whether a witness is competent or compellable.

395. Subclause(2) provides that a voir dire on the admission of evidence of an admission, or evidence that is alleged to have been obtained improperly or in contravention of law, is to be held without the jury being present.

396. Subclause (3) provides that the jury will not be present at other voir dires unless the court so orders.

397. Subclause (4) specifies that the court should take into account, in determining whether the jury should be present on the voir dire whether the evidence to be given in the voir dire would be admitted if adduced at some other stage of the proceeding.

398. Subclause (5) provides that the privilege against self-incrimination does apply on the voir dire - that is the accused can rely on the privilege if asked questions about the offences in respect of which he is being tried.

399. Subclause (6) applies the admissibility rules to the voir dire.

400. Subclause (7) provides that the only use in the trial proper that can be made of evidence given on the voir dire is as a prior inconsistent statement if a witness later gives evidence inconsistent with evidence he or she gave on the voir dire.

401. Subclause (8) allows an accused in a criminal trial who gives sworn evidence on the voir dire to continue to have the facility of giving unsworn evidence in the trial proper.

Clause 147 - Waiver of rules of evidence

402. Subclause (1) allows the court by consent to waive any of the following rules:

the rules relating to the manner of giving evidence (Division 3 of Part III)

the exclusionary rules - the hearsay rule, the opinion rule, the rules excluding evidence of admissions and confessions, the rule excluding evidence of judgments and convictions, the rules relating to character and conduct evidence, the rules relating to credibility evidence, (Divisions 1-6 of Part V) and the rules relating to the method of proof of documents (Division 2 of Part VI).

403. Subclause (2) applies in criminal trials. It provides that the accused's consent is not effective unless the accused is legally represented or the court is satisfied that the accused understands the consequences of giving that consent.

404. Subclause (3) applies in a civil trial. It provides that the court can waive any of the rules referred to in subclause (1) for evidence relevant to matters not genuinely in dispute or because compliance would involve unnecessary expense or delay.

405. Subclause (4) sets out particular matters to be taken into account in exercising the power under subclause (3) including the probative value of the evidence and the importance of evidence in the proceeding.

Clause 148 - Leave, &c., may be given on terms

406. This clause is a general provision applying to other provisions in the Bill which allow the court to give leave, permission or directions.

407. Subclause (1) allows the leave, permission or direction to be given on terms.

408. Subclause (2) sets out general matters to be taken into account including in particular time and cost considerations and considerations of fairness to witnesses and parties.

Clause 149 - Additional powers on discovery and inspection

409. This clause extends the powers of the courts in relation to discovery and inspection of documents to cover the case of documents such as computer disks and the like. It allows the courts, in ordering discovery or inspection, to allow adequate and appropriate inspection and testing of these documents, for example, by 'dummy runs' on a computer.

410. Subclause (2) extends the rule making powers of courts to which the Bill applies to allow those courts to make rules requiring exchange of experts' reports.

411. Subclause (3) allows rules made under either of the previous subclauses to provide for the exclusion of evidence if those rules are not complied with.

Clause 150 - Conferral of jurisdiction

412. This clause confers jurisdiction on the federal courts in matters arising under the Bill.

Clause 151 - Regulations

413. This clause enables the Governor-General to make regulations for the purposes of the Bill.

SCHEDULE

414. The Schedule sets out the forms of oaths and affirmations by witnesses and interpreters.

EVIDENCE (CONSEQUENTIAL AMENDMENTS) BILL 1987

OUTLINE

415. This Bill is consequential upon the Evidence Bill 1987. It makes amendments to the Australian Capital Territory Supreme Court Act 1933, the Evidence Act 1905, the Family Law Act 1975, the Federal Court of Australia Act 1976 and the Judiciary Act 1903 to make those Acts consistent with the Evidence Bill 1987. Amendments for the same purpose are made to Australian Capital Territory laws (the Crimes Act 1900 (NSW), the Evidence Ordinance 197 1, the Magistrates Court Ordinance 1930 and the Oaths and Affirmations Ordinance 1984); Christmas and Cocos (Keeling) Islands laws (Criminal Procedure Code, Evidence Ordinance and Oaths Ordinance); the Supreme Court Ordinance 1958 of Christmas Island and the Supreme Court Ordinance 1955 of the Cocos (Keeling) Islands.

NOTES ON CLAUSES

PART I - PRELIMINARY

Clause 1 - Short title

416. This clause provides that the Bill may be cited as the Evidence (Consequential Amendments) Act 1987.

Clause 2 - Commencement

417. This clause provides that the Bills will come into operation immediately after the Evidence Bill 1987 comes into operation.

Clause 3 - Transitional

418. This clause is equivalent to clause 3 of the Evidence Bill 1987. It provides that the amendments made by this Act do not apply to proceedings commenced before the Commencement of the Act.

Clause 4 - Amendment or repeat of Ordinances

419. This clause is included to ensure that Territory laws as amended by this Act may be further amended by Territory laws.

PART II - AMENDMENTS OF THE AUSTRALIAN CAPITAL TERRITORY

SUPREME COURT ACT 1933

Clause 5 - Principal Act

420. This clause provides that the Australian Capital Territory Supreme Court Act 1933 is in this Part called the Principal Act.

Clause 6 - Repeal of section 50

421. Section 50 of the Principal Act prescribes forms of oaths and affirmations. The New South Wales forms are prescribed. The Evidence Bill 1987 prescribes forms of oaths and affirmations, and authorises courts to administer oaths and affirmations. Section 50 is therefore repealed as unnecessary.

PART III - AMENDMENTS OF THE EVIDENCE ACT 1905

422. The Evidence Act 1905 makes a number of miscellaneous provisions applying in all courts throughout Australia, including Federal courts and the courts of the Territories. It covers matters such as judicial notice of Commonwealth laws and Acts, proof of acts done by the Governor-General, the Gazette and other printing by authority and judicial proceedings. Part IIIA of the Act deals with the admissibility of certain business records in Federal courts only. It is necessary to retain the Act so far as it applies in courts other than Federal courts and the courts of the Territories. Accordingly, Part IIIA should be repealed. However it is not necessary to amend the Act in detail in other respects: litigants in Federal and Territory courts will have the choice of using either the provisions of the Evidence Act or the new Evidence Bill 1987.

Clause 7 - Principal Act

423. This clause cites the Evidence Act 1905 as the Principal Act for the purposes of this Part.

Clauses 8 and 9 - Title and short title

424. These clauses amend the long title and the short title of the Evidence Act 1905 to avoid confusion with the Evidence Bill 1987.

Clause 10 - Repeal of Part IIIA

425. Part IIIA provides for the proof of certain business records in Federal and Territory courts. The provision it makes is made in the Evidence Bill 1987 in a modified, simpler and more rationalised way. The Part is therefore repealed.

PART IV - AMENDMENT OF THE FAMILY LAW ACT 1975

Clause 11 - Principal Act

426. This clause cites the Family Law Act 1975 as the Principal Act for the purposes of this Part.

Clause 12 - Offensive or scandalous questions

427. Section 101 of the Family Law Act 1975 authorises the court to disallow scandalous or offensive questions. So far as the Family Court is concerned, this power is now conferred by the Evidence Bill 1987 and the section need only continue to have effect in relation to other courts exercising jurisdiction under the Act.

PART V - AMENDMENT OF THE FEDERAL COURT OF AUSTRALIA ACT 1976

Clause 13 - Principal Act

428. This clause cites the Federal Court of Australia Act 1976 as the Principal Act in this Part.

Clause 14 - Oaths and affirmations

429. Subsections 44(2) and (3) of the Principal Act prescribe the forms of oaths and affirmations as the forms in use in the jurisdiction in which the Court is sitting. This clause repeals subsections (2) and (3) which are duplicated by provisions of the Evidence Bill 1987.

PART VI - AMENDMENT OF THE JUDICIARY ACT 1903

Clause 15 - Principal Act

430. This clause cites the Judiciary Act 1903 as the Principal Act in this Part.

Clause 16 - Oaths and affirmations

431. Subsections 77F(2) and (4) of the Principal Act prescribe the forms of oaths and affirmations in the High Court as the forms in use in the jurisdiction in which the Court is sitting. This clause repeals subsections (2) and (4) which are duplicated by provisions of the Evidence Bill 1987.

PART VII - AMENDMENT OF THE CRIMES ACT, 1900 (NSW) IN ITS APPLICATION IN THE AUSTRALIAN CAPITAL TERRITORY

Clause 17 - Principal Act

432. This clause cites the Crimes Act 1900 (NSW) in its application in the ACT as the Principal Act in this Part.

Clause 18 - Repeal of section 405

433. This section allows an accused person in a criminal trial to make an unsworn statement without being liable to cross-examination. The Evidence Bill 1987 provides detailed regime for unsworn evidence and accordingly the provision is repealed.

PART VIII - AMENDMENTS OF THE EVIDENCE ORDINANCE 1971 (ACT)

Clause 19 - Principal Ordinance

434. This clause cites the Evidence Ordinance 1971 (ACT) as the Principal Ordinance in this Part.

Clauses 20 and 21 - Title and short title

435. These clauses amend the long title and the short title of the Evidence Ordinance 1971 (ACT) so as to avoid confusion with the Evidence Bill 1987.

Clause 22 - Repeals

436. This clause repeals a number of provisions of the Evidence Ordinance 1971 which are unnecessary with the enactment of the Evidence Bill 1987. Section 4 divides the Ordinance into parts. In keeping with current drafting practice, this section is omitted. Part II provides for judicial notice to be taken of ACT laws. Part III prescribes certain rules for the proof of official documents and certificates. Part IV provides for the proof of attestation of certain documents. Part V provides for the proof of a particular class of documents known as bankers' books. Part VI provides a number of exceptions to the hearsay rule for statements contained in documents. Part VII provides for computer produced evidence. Part VIII provides for the proof of foreign laws and foreign documents. Sections 53 to 65 make a number of provisions relating to questioning witnesses. All of these provisions are duplicated by the Evidence Bill 1987 and are therefore repealed. Section 57, upon which the provisions of the Evidence Bill 1987 relating to a privilege against self-incrimination are based, provides for the issuing of certificates. Subclause (2) provides for the continuing operation of those certificates after the repeal of section 57.

Clause 23 - Competence and compellability of certain witnesses

437. Section 66 of the Evidence Ordinance 1971 provides for the competence and compellability of spouses in criminal proceedings, Subclauses (1) and (2) are repealed as they are duplicated by provisions in the Evidence Bill 1987. Subclause (3) provides that spouses are compellable witnesses in a series of particular specified proceedings. These provisions are retained.

Clause 24 - Repeals

438. Sections 68 to 71, 73, 74 and 76 relate to criminal trials. They deal with the admission of confessions for admissions of the accused, incriminating questions, the use of prior convictions and character evidence, evidence given by dead or absence persons in Supreme Court criminal trials, the ability of the court or the prosecutor to comment on failure to give evidence and scientific evidence. Section 76 provides a general discretion to reject evidence. All these provisions are duplicated by more general provisions in the Evidence Bill 1987 and are therefore repealed.

Clause 25 - Limitation on unsworn evidence

439. Section 76H of the Evidence Ordinance 1971 restricts the kind of statement that may be made by an accused as an unsworn statement in a trial for a sexual offence. The amendments are consequential upon the repeal of section 405 of the Crimes Act 1900 (NSW) (which is the present law providing for unsworn statements) by clause 18 of this Bill.

Clause 26 - Repeal of sections 77, 79, 80, 86, 87 and 89

440. This clause repeals a number of provisions in the Evidence Ordinance 1971 duplicated in the Evidence Bill 1987. Section 77 provides for the proof of previous convictions in proceedings other than for defamation. Section 79 makes similar provision. Section 80 is a provision saving the operation of other laws. Section 86 provides for presumptions of authenticity in relation to documents more than 20 years old. Section 87 provides for proof of photocopies of documents. Section 89 provides for proof by affidavit of certain matters relating to service of notices to produce.

Clause 27 - Certified copy of transcript of Supreme Court proceedings

441. Section 91 makes detailed provision for records of evidence and sound recordings. Subsection 91(4) provide that sound recordings are evidence of certain matters relating to the proceedings. Subsection 91(6) provides exceptions to the hearsay rule for certified transcripts of evidence. Both these provisions are duplicated by provisions in the Evidence Bill 1987 and are therefore repealed.

Clause 28 - Repeal of sections 92 and 93

442. Section 92 of the Evidence Ordinance 1971 provides for the proof of matters appearing on maps, charts or like documents. Section 93 provides a presumption of delivery in the ordinary course of posts. Both these matters arc covered by the Evidence Bill 1987 and the provisions are therefore repealed.

Clause 29 - Fingerprints

443. Section 94 provides for a method of proof of previous convictions. Subsections 94(1) and (2) provide for a certificate to the evidence of the fact of conviction. These provisions are duplicated by provisions in the Evidence Bill 1987 and the subsections are therefore repealed.

Clause 30 - Repeal of sections 95 and 96

444. Section 95 of the Evidence Ordinance 1971 abolishes an ancient privilege against answering questions that would expose a person to a forfeiture, a privilege in relation to title deeds and a privilege in relation to documents supporting a party's own case. These privileges are not continued under the Evidence Bill 1987 and section 95 is therefore repealed. Section 96 of the Ordinance provides for the comparison of disputed writings. Under the Evidence Bill 1987 it is no longer necessary and is repealed.

PART IX - AMENDMENT OF THE MAGISTRATES COURT ORDINANCE 1930 (ACT)

Clause 31 - Principal Ordinance

445. This clause provides that the Magistrates Court Ordinance 1930 (ACT) is the Principal Ordinance for this Part.

Clause 32 - Conduct of case

446. This clause amends section 53 of the Magistrates Court Ordinance 1930 by removing references to the ability of informants and complainants to examine and cross-examine witnesses. These references are no longer necessary, since the ability of parties generally to examine, cross-examine and re-examine witnesses is provided for in the Evidence Bill 1987.

Clause 33 - Repeal of sections 55, 57 and 58

447. This clause repeals sections 55, 57 and 58 of the Magistrates Court Ordinance 1930. Section 55 requires that evidence generally be given on oath. This is covered in the Evidence Bill 1987 and accordingly the provision is repealed. Section 37 and 58 provide for the competence and compellability of spouses, including in criminal proceedings. The Evidence Bill 1987 provides a complete code of competence and compellability, including spouses, in Territory Courts and these provisions are accordingly repealed.

PART X - AMENDMENT OF THE OATHS AND AFFIRMATIONS ORDINANCE 1984 (ACT)

Clause 34 - Principal Ordinance

448. This clause provides that the Oaths and Affirmations Ordinance 1984 (ACT) is the Principal Ordinance in this Part.

Clause 35 - Insertion of new section

449. This clause inserts a proposed section 5A in the Oaths and Affirmations Ordinance 1984 (ACT) to make it clear that the forms of oaths and affirmations, and the provisions for the administration of oaths and affirmations, in ACT courts are governed by the Evidence Bill 1987.

PART XI - AMENDMENT OF THE CRIMINAL PROCEDURE CODE (SINGAPORE) IN ITS APPLICATION IN CHRISTMAS ISLAND AND THE COCOS (KEELING) ISLANDS

Clause 36 - Principal Ordinance

450. This clause provides that the Criminal Procedure Code (Singapore), as applied in the Christmas Island and Cocos (Keeling) Islands, is the Principal Ordinance in this Part.

Clause 37 - Statements to police

451. Section 121 of the Criminal Procedure Code provides that unsworn records of statements made to police officers in the course of a police investigation under the Code are not to be used as evidence except in the circumstances provided for in that section. The Evidence Bill 1987 contains detailed provisions for the use of unsigned records of interview and subsection 121(1) is therefore omitted.

Clause 38 - Power to record statements and confessions

452. Subclause 123(6) provides for the admissibility of confessions or statements of accused persons that have been recorded than in accordance with the procedure laid down in section 123. This matter will be covered by the discretion to exclude provided by the Evidence Bill 1987 and the subsection is accordingly omitted.

Clause 39 - Defence of accused

453. Section 142 of the Criminal Procedure Code makes provision about the accused conducting his or her own defence. Subsection 142(3) provides that the accused is a competent witness. Questions of competence and compellability are exhaustively dealt with in the Evidence Bill 1987 and subsection 142(3) is accordingly omitted.

Clause 40 - Procedure in summary trials

454. Section 172 of the Criminal Procedure Code sets out details of the procedure to be followed in summary trials. Subparagraph 172(k)(ii) provides for cross-examination by an accused given evidence on his own behalf of other accused persons. Rights to cross-examination are exhaustively dealt with in the Evidence Bill 1987 and this subparagraph is accordingly omitted.

Clause 41 - Repeal of section 193

455. Section 193 of the Criminal Procedure Code provides that evidence given by an accused in a preliminary hearing is to be treated as evidence. The Evidence Bill 1987 makes exhaustive provision about the admissibility of evidence and accordingly this section is repealed.

Clause 42 - Accused or advocate may open case and examine witnesses

456. Section 195 of the Evidence Procedure Code provides that accuseds who elect to be called as witnesses may be cross-examined by co-accuseds. The Evidence Bill 1987 provides a comprehensive code for examination and cross-examination of witnesses and this subsection is accordingly omitted.

Clause 43 - Repeal of sections 198, 199, 351 and 352

457. This section repeals four sections of the Criminal Procedure Code. Section 198 makes provision for a view by jury. Section 199 allows jurors to be witnesses. Section 351 provides for the admissibility of depositions on the trial and section 352 provides for the admissibility of certain postmortem reports. Each of these provisions is duplicated by provisions of the Evidence Bill 1987 and they are therefore repealed.

Clause 44 - Repeal of section 121A

458. Section 121 A of the Criminal Procedure Code provides for the admissibility of confessions and admissions and statutorily enacts the voluntariness rule. The admissibility of confessions and admissions is dealt with exhaustively by the Evidence Bill 1987 and this section is therefore repealed.

PART XII - AMENDMENT OF THE EVIDENCE ORDINANCE (SINGAPORE) IN ITS APPLICATION IN CHRISTMAS ISLAND AND THE COCOS (KEELING) ISLANDS

Clause 45 - principal Ordinance

459. This clause provides that the Evidence Ordinance (Singapore), in its application in Christmas Island and the Cocos (Keeling) Islands, is referred to as the Principal Ordinance in this Part.

Clause 46 - Repeals

460. This clause repeals a number of provisions of the Evidence Ordinance. They are as follows:

sections 5 to 16 deal with the relevance of evidence

sections 17 to 31 deal with the admissibility of evidence of admissions and confessions in criminal cases

sections 32 and 33 deal with evidence of statements by persons not called as witnesses (the hearsay rule)

sections 34 to 39 deal with the admissibility of certain particular kinds of statements such as entries made in books of account and maps, charts and plans

sections 40 to 44 deal with the admissibility of judgments, orders and decrees in previous preceedings

sections 45 to 51 deal with the admissibility of evidence and opinion

sections 52 to 55 deal with the admissibility of evidence of character

sections 56 and 57 deal with judicial notice

sections 59 and 60 deal with oral evidence as proof of facts

sections 61 to 73 deal with the admissibility and proof of the contents of documents

sections 74 to 79 deal with the admissibility and proof of certain public documents including laws of other countries

sections 80 to 91 establish certain presumptions as to the authenticity, etc, of documentary evidence, and

sections 119 to 165 deal with the questioning of witnesses, including examination, cross-examination and re-examination.

All these matters are dealt with in the Evidence Bill 1987 which will apply in Christmas Island and Cocos (Keeling) Island courts. These provisions are therefore repealed.

PART XIII - AMENDMENT OF THE OATHS ORDINANCE (SINGAPORE) IN ITS APPLICATION IN CHRISTMAS ISLAND AND THE COCOS (KEELING) ISLANDS

Clause 47 - Principal Ordinance

461. This clause provides that the Oaths Ordinance (Singapore), as applied in Christmas Island and the Cocos (Keeling) Islands, is the Principal Ordinance in this Part.

Clause 48 - Insertion of new section

462. This clause inserts a proposed section 2A in the Oaths Ordinance (Singapore) to make it clear that the forms of oath and affirmation, and the administration of oaths and affirmations, in Territory courts are governed by the Evidence Bill 1987. It is necessary to retain the provisions of the Oaths Ordinance in terms as they are not restricted to the taking of evidence by courts.

PART XIV - AMENDMENT OF THE SUPREME COURT ORDINANCE 1958 (CHRISTMAS ISLAND)

Clause 49 - Principal Ordinance

463. This clause provides that the Supreme Court Ordinance 1958 (Christmas Island) is the Principal Ordinance in this Part.

Clause 50 - Evidence, practice and procedure

464. Section 15 of the Supreme Court Ordinance 1958 applies the rules of practice and procedure applying in the Supreme Court of the Australian Capital Territory immediately before the commencement of the Supreme Court Ordinance 1958 to proceedings in the Supreme Court of Christmas Island. This is subject to the Supreme Court Ordinance 1958, rules made under the Ordinance and the Criminal Procedure Code (Singapore). So far as the Evidence Bill 1987 provides a detailed evidentiary and procedural code, the practice and procedure should be subject to the Evidence Bill 1987. This clause amends subsection 15(1) of the Supreme Court Ordinance 1958 to that effect.

PART XV - AMENDMENTS OF THE SUPREME COURT ORDINANCE 1955 (COCOS (KEELING) ISLANDS

Clause 51 - Principal Ordinance

465. This clause provides that the Supreme Court Ordinance 1955 (Cocos (Keeling) Islands) is the Principal Ordinance in this Part.

Clause 52 - Evidence, practice and procedure

466. Section 15 of the Supreme Court Ordinance 1955 applies the rules of practice and procedure applying in the Supreme Court of the Australian Capital Territory immediately before the commencement of the Supreme Court Ordinance 1958 to proceedings in the Supreme Court of Christmas Island. So far as the Evidence Bill 1987 provides a detailed evidentiary and procedural code, the practice and procedure should be subject to the Evidence Bill 1987. This clause amends subsection 15(1) of the Supreme Court Ordinance 1955 to that effect.

Evidence Regulations

TABLE OF PROVISIONS

Regulation

1.	Citation
2.	interpretation
3.	Form of notice: hearsay evidence
4.	Form of notice: evidence of conduct
5.	Time for giving notice
6.	Use of affidavits
7.	Form of certificate

SCHEDULE

Evidence Regulations

Citation

1. These Regulations may be cited as the Evidence Regulations.

Interpretation

2. In these Regulations, "the Act" means the Evidence Act 1987.

Form of notice: hearsay evidence

3. (1) Notice required by section 60 of the Act shall contain, so far as they are known to

the party who gives notice -

(a) the following particulars in relation to the previous representation concerned:

(i) the date, time and place at which the previous representation was made;

(ii) the names and addresses, so far as they are known, of the person by whom, and the person to whom, the previous representation was made;

(b) so far as they do not otherwise appear - the substance of the evidence proposed to be tendered; and

(2) If any of those representations was made in writing, a copy of the writing shall be

annexed to the writing by which notice is given or made available to each party to whom notice is given.

(3) Where -

(a) it is alleged that the maker of the previous representation is not available to give evidence of the asserted fact; or

(b) the party giving notice proposes not to call that person to give evidence of the asserted fact,

the notice shall also contain particulars of the grounds for the allegation or proposal.

Form of notice: evidence of conduct

4. Notice required by section 90 of the Act shall contain, so far as they are known to the party who gives notice -

(a) the following particulars in relation to an act, state of mind or event:

(i) the date, time and place at which the act was done, the state of mind existed or the event occurred, as the case may be;

(ii) the names and address, so far as they are known, of any person who it is reasonable to suppose would be able to give evidence about the act, state of mind or event; and

(b) so far as they do not otherwise appear - the substance of the evidence proposed to be tendered.

Time for giving notice

5. Notice does not have effect unless it has been given not less than 14 days before the hearing of the proceeding.

Use of affidavits

6. Notice may be by way of affidavit.

Form of certificate

7. The form of a certificate under section 110 of the Act is the form in the Schedule.

SCHEDULE

Regulation 7

CERTIFICATE

TO:1

AND TO ANY OTHER PERSON WHOM IT MAY CONCERN:

Under section 110 of the Evidence Act 1987, the evidence a statement of which is attached to this certificate2 is not admissible in a court or other legal proceeding except as provided in that section.

Name of witness who gave the evidence:1

Proceeding in which the evidence given:3

Date on which the evidence given:4

. . . . . . . . . . . . . . . . . . . . . . . .

Presiding Judge or Magistrate

1. insert name of defendant to who this certificate is issued

2. attach a transcript or the evidence or identify it in some other way

3. identify the proceeding in which the evidence was given

4. insert the date on which the evidence was given

The Evidence Act 1987, subsection 110(4), provides:

(4) Evidence in respect of which a certificate under this section has been given is not admissible against the person to whom the certificate was given in any legal or administrative proceeding, not being a criminal proceeding in respect of the falsity of the evidence.

A "legal or administrative proceeding" is any trial in an Australian court, and any proceeding in an Australian tribunal in which the laws of evidence are being applied.

Dissents

1. Mr Justice Wilcox is of the view that clause 28 of the Evidence Bill 1987 should be amended as follows (see paragraph 106 of the Report):

Paragraph 28(2)(b) -

Omit the paragraph, substitute the following paragraph:

(b) "unsworn evidence is, only because it is unsworn evidence or is not subject to cross-examination, necessarily less persuasive than evidence adduced from other persons in the proceeding.".

2. Mr Simos QC is of the view that the Evidence Bill 1987 should be amended as follows (see paragraph 147 of the Report):

Heading to Subdivision A of Division 1 of Part V -

Omit the heading.

Clause 54 -

Omit subclause (3), substitute the following subclause:

(3) "Where evidence of a previous representation may only be used to prove the existence of a asserted fact, it is inadmissible.".

Heading to Subdivision B of Division 1 of Part V

Omit the heading.

Clauses 55 to 60 (inclusive) -

Omit the clauses, substitute the following clauses:

Statements in documents

"55. (1) This section only applies in a civil proceeding.

"(2) Subject to the succeeding provisions of this section, where -

(a) a previous representation has been made by a person in a document;

(b) the person -

(i) is or is to be called to give evidence of an asserted fact; or

(ii) is unavailable to give evidence of an asserted fact;

(c) at the time when the representation was made, the person's knowledge of the asserted fact was based on what he or she saw, heard or otherwise perceived, other than a previous representation made by some other person about the asserted fact; and

(d) the document is produced to the court,

the hearsay rule does not prevent the use or admission of a document so far as it contains the representation.

"(3) Paragraph(2)(c) does not apply if -

(a) the document is or forms part of a record that is or purports to be a continuous record;

(b) the person made the representation in the course of performing a duty to record information supplied to him or her by some other person; and

(c) that last-mentioned person's knowledge of the asserted fact was or might reasonably be supposed to have been based on what he or she saw, heard or otherwise perceived, other than a pervious representation made by some other person about the asserted fact.

"(4) Paragraph (2)(d) does not apply if, having regard to the circumstances, it would cause undue expense to require the document to be produced and a copy of the document, authenticated in such manner as the court approves, is produced instead.

"(5) Where, at the time when the previous representation was made -

(a) a legal or administrative proceeding had been commenced or was anticipated by the person who made the previous representation;

(b) the existence of the asserted fact was or would be a fact in issue in that proceeding; and

subsections (2) to (4) (inclusive) do not apply in relation to evidence of the previous representation.

Statements against interest

"56. (1) Where a previous representation was made by a person who is unavailable to give evidence of the asserted fact and the representation was, at the time when it was made, against the interests of the person, the hearsay rule does not prevent the admission or use of evidence of the previous representation if, at the time when it was made -

(a) the person's knowledge of the subject-matter of the representation was based on what he or she saw, heard or otherwise noticed;

(b) the person knew or ought reasonably to have known that it was against his or her interests; and

"(2) For the purposes of subsection (1), but subject to subsections (3) and (4), a representation is against the interests of a person if -

(a) it tends to impugn the title of the person to property;

(b) by reason of the representation, the person is likely to suffer a pecuniary loss;

(d) it tends to damage the person's reputation.

"(3) Where a representation would be against the interests of the person who made it only in certain circumstances, then, for the purposes of subsection (1), it shall not be taken to be against the interests of the person.

"(4) In a criminal proceeding, where a representation tends to prove that the person who made it is guilty of an offence, the representation shall not be taken to be against the interests of the person who made it for the purposes of subsection (1), but this subsection does not have effect to prevent the admission or use of an admission.

"(5) Where the hearsay rule does not prevent the admission or use of evidence of a previous representation by reason only of the operation of the preceding provisions of this section, it does not prevent the admission or use of evidence of some other representation that concerns the same subject-matter and was made by the person who made the first-mentioned representation shortly before or shortly after the first-mentioned representation was made.

Statements in the course of duty

"57. Where a previous representation that was made by a person who is unavailable to give evidence of the asserted fact concerned acts or omissions done or omitted to have been done by the person in the course of his or her duty, being a representation that was made and recorded or reported by the person, or by some other person, in the course of duty, the hearsay rule does not prevent the admission or use of evidence of the previous representation if -

(a) it was made shortly after the time when the act or omission occurred; and

(b) the person who made it and, if the person who made it is not the person who recorded it, the person who recorded it, have no motive to be untruthful in relation to the subject-matter of the representation.

Evidence in earlier proceedings

"58. Where -

(a) a previous representation was made in a legal or administrative proceeding by a person who is unavailable to give evidence of the asserted fact; or

(b) a previous representation was made in a legal or administrative proceeding by a person and, having regard to the gravity of the subject-matter of that proceeding and the subject-matter of the proceeding (in this section called the current proceeding) in which evidence of the previous representation is sought to be adduced, it would cause undue expense to require the person to be present at the hearing of the current proceeding to give evidence of the asserted fact,

the hearsay rule does not prevent the admission of use of evidence of the representation in the current proceeding if the current proceeding is between the parties to the legal or administrative proceeding or between one or more of them and a person by whom or through whom the other party to the current proceeding claims.

Statements as to cause of death

"59. Where a previous representation that was made by a person now dead concerned the cause of his or her death and the person believed, at the time when it was made -

(a) that death was imminent; and

(b) that he or she would suffer after death if he or she were to lie about the cause of his or her death,

the hearsay rule does not prevent the use or admission of evidence of the previous representation in a proceeding in which the cause of the person's death is a fact in issue.

Contemporaneous statements

"60. The hearsay rule does not prevent the admission or use of evidence of a previous representation that was made at or shortly after the time when the asserted fact occurred and in circumstances that make it unlikely to be a fabrication.

Statements as to health or state of mind

"60A. The hearsay rule does not prevent the admission or use of evidence of a previous representation as to the bodily health or state of mind of the person who made the representation at the time when it was made.

Identification

"60B. The hearsay rule does not prevent the admission or use of identification evidence.

Third party confessions

"60C. In a criminal proceeding, the hearsay rule does not prevent the admission or use of evidence of previous representation made by a person other than a defendant and adduced by a defendant, being evidence that tends to prove that that person is guilty of an offence for which the defendant is being prosecuted, if there are, in relation to the representation, circumstantial guarantees of trustworthiness other than the fact that the representation was made.

Statements of victim

"60D. In a criminal proceeding, where a person who is alleged to be a victim of the offence for which the defendant is being prosecuted is unavailable to give evidence of the asserted fact, the hearsay rule does not prevent the admission or use of evidence of previous representation made by the person, being a representation wholly or partly to the effect that the defendant is not guilty of the offence, if the person had no motive to lie in relation to the subject-matter of the representation.

Basis of expert opinion

"60E. (1) Where evidence of an opinion that is based wholly or partly on specialised knowledge of a person, being knowledge that the person has that is based on the person's training study or experience has been admitted, the hearsay rule does not prevent the use or admission of evidence of the following previous representations, being representations on which that opinion or knowledge was based:

(a) a representation made by a person concerning the person's state of mind or health, or the person's intentions, at the time at which the representation was made;

(b) a representation made by a person in connection with medical, psychiatric or other therapeutic treatment to be given to the person;

(c) a representation that forms pan of the knowledge of the person acquired in the course of acquiring or using the specialised knowledge;

(d) representations contained in published documents consulted by the person in the course of acquiring the specialised knowledge, being documents that are accepted, by other persons who have specialised knowledge of the same kind as the witness, as being of reliable authority as to the representations that they contain;

(e) representations included in a class of representations that are ordinarily relied on by persons who have specialised knowledge of the same kind as that of the person in the course of using that knowledge, including market quotations, tabulations, lists, compilations of statistics and directories.

"(2) Where the asserted fact in relation to a representation is the state of mind or health of a person, or the intentions of a person in relation to the disposition of the estate of the person after the person's death, paragraph (1)(a) extends to the representation, whenever it was made.

Prior consistent and Inconsistent statements

"60F. Where, by virtue of one of the provisions of Division 6 of Part V, the credibility rule does not prevent the admission or use of evidence of a previous representation made by a witness, being a representation that is a prior consistent statement or a prior inconsistent statement made by the witness, the hearsay rule does not prevent the admission or use of the evidence.".

3.The President, the Hon X Connor, is of the view that there should be inserted after clause 110 of the Evidence Bill 1987, but in Subdivision C of Division 6 of Part V, the following clause (see paragraph 206-13 of the report):

Exclusion of evidence of representations made to clergy, &c.

"110A. (1) Evidence may not be adduced of a confidential communication between a minister of a religion acting as minister and a person in the course of the person's -

(a) making a confession in accordance with the religion; or

(b) seeking spiritual advice or comfort.

"(2) Subsection (1) does not apply if the person to whom the advice was given consents to the giving of the evidence.

"(3) In this section, 'minister of religion' means a person who holds, in the religion to which the person adheres, the office of priest, rabbi, minister or a like office.".

Suggested amendments to court rules

1.In several instances the Evidence Bill 1987 deals with matters which, at present, are also dealt with by rules of the relevant courts. It is not appropriate to amend such rules by legislation. It may be of assistance, however, to note those rules which the Commission considers ought to be repealed or amended when the Bill is enacted.

Rules of the Supreme Court of the Australian Capital Territory

Order 38, rule 20 and Order 39, rule 3

Repeal the rules.

Order 39, rule 24 -

Omit "All evidence", substitute "Subject to the Evidence Act 1987, all evidence".

Order 39, rule 21 -

Repeal the rule.

Order 40, subrules 3(1) and (2) -

Omit the subrules.

Order 70, rules 2, 3, 4 and 5 -

Repeal the rules.

Order 70, rule 6 -

Insert after subrule (1) the following subrule:

"(1A) The person to be sworn may name, instead of Almighty God, a god recognised by the person's religion.".

Family Law Rules

Order 30, rule 1 -

Omit all words from and including "oaths," (first occurring), substitute "oaths and affirmations".

Federal Court Rules

Order 33, rules 2, 3 and 7 -

Repeal the rules.

Order 33, rule 11 -

Add at the end the following subrule:

"(5) A reference in the preceding provisions of this rule to a ground of privilege is a reference to a ground on which an objection under Division 8 of Part V of the Evidence Act 1987 may be taken.".

After Order 34, rule 1 -

Insert the following rule:

Interpretation

"1A. In this Order, 'expert', in relation to a question, means a person who has specialised knowledge about the question based on the person's training, study or experience."

Order 34, subrule 2(2) -

Omit the subrule.

High Court Rules

Order 36, rule 30 and Order 37, rules 2 and 23

Repeal the rules.

Order 37, rule 23 -

Omit "Evidence", substitute "Subject to the Evidence Act 1987, evidence".

Order 38, rule 1, definition of "expert" -

Omit the definition, substitute the following definition:

"'expert', in relation to an issue for an expert, means a person who has specialised knowledge about the issue based on the person's training, study or experience."

Order 39, subrule 3(3) -

Omit the subrule.

[Return to Top]

Appendix B: Submissions

Submissions on the Interim Report

Submissions before the Interim Report

Written submissions

Oral submissions

Submissions on the Interim Report

57	Attorney-General's Department, Territories and Other Projects Branch	27 March 1986
63	Attorney-General's Department	March 1986
64	Attorney-General's Department, Family Law Branch	March 1986
65	Attorney-General's Department, Courts and Administrative Law Branch	18 March 1986
74	Attorney-General's Department, Courts and Administrative Law Branch	4 April 1986
79	Attorney-General's Department, Courts and Administrative Law Branch	28 April 1986
110	Attorney-General's Department, Courts and Administrative Law Branch	9 October 1986
93	Attorney-General's Department, Criminal Law and Security Branch	20 June 1986
97	Attorney-General's Department, Courts and Administrative Law Branch	20 May 1986
102	Attorney-General's Department (GD Holmes)	18 July 1986
109	Attorney-General's Department (H Woltring)	9 October 1986
52	Australian Customs Service	26 February 1986
107	Australian Customs Service	13 August 1986
55	Australian Federal Police	24 December 1986
60	Australian Federal Police	5 March 1986
86	Australian Federal Police	14 May 1986
19	Australian Federation of Business and Professional Women	9 December 1985
95	Australian Federation of Business and Professional Women	21 May 1986
16	Australian Institute of Multicultural Affairs	22 October 1985
34	Australian Institute of Valuers (Tasmanian Division)	5 December 1985
99	Australian Medical Association, Queensland Branch	17 June 1986
27	Australian Society of Hypnosis, NSW Branch	24 November 1985
17	Australian Medical Association, Australian Capital Territory Group	25 November 1985
80	Australian Psychological Society, Western Australian Section	May 1986
83	JM Batt QC, Melbourne	May 1986
22	D Bell	18 December 1985
94	His Honour Judge Brebner, District Court, South Australia	16 July 1986
87	DM Byrne QC, Melbourne	May 1986
29	P Byrne	29 November 1985
53	P Byrne	30 January 1986
111	M Colbran, Barrister, Melbourne	13 October 1986
92	I Coldrey QC, Director of Public Prosecutions, Victoria
47	Victorian Committee on Interpreting, Translating and Training (A Crouch)	22 January 1986
45	Department of Aboriginal Affairs	19 December 1985
61	Department of Special Minister of State	18 December 1985
18	TA Dietz	29 November 1985
36	Director of Public Prosecutions	January 1986
124	Director of Public Prosecutions	3 December 1986
12	Director of Public Prosecutions	November 1985,
		3 December 1985
59	Director of Public Prosecutions	12 March 1986
70	Director of Public Prosecutions	4 April 1986
88	PM Donohoe, Barrister, Sydney	28 May 1986
120	JM Dugan, Chief Magistrate, Magistrates Court of Victoria	29 August 1986
40	T Dwyer	21 January 1986
50	T Dwyer	28 January 1986
21	The Hon Sir Richard Eggleston KT QC	3 December 1985
113	The Hon Sir Richard Eggleston KT QC	13 October 1986
49	ES Magner	6 February 1986
98	Family Law Council	30 June 1986
116	Family Law Council	10 September 1986
7	E Goldstein, Barrister and Solicitor, Vancouver	29 October 1985
68	Government of Norfolk Island	26 March 1986
38	The Hon Justice PB Hase, Family Court of Australia	22 November 1985
13	The Hon Justice PB Hase, Family Court of Australia	29 November 1985
43	PM Hill	6 January 1986
48	Humanist Society of Victoria	22 January 1986,
		30 January 1986
58	Humanist Society of Victoria	27 March 1986
9	Humphrey	13 November 1985
10	MF Johnson	8 November 1985
72	J King	19 November 1985
20	JPA Landry
	Australian Interpreters/Translators (R Langen-Zueff)	15 April 1986
	Australian Interpreters/Translators (R Langen-Zueff)	May 1986
67	Law Institute of Victoria, Family Law Section	3 April 1986
73	Law Institute of Victoria	19 March 1986
35	Law Society of the ACT (PL Sheils QC)	3 December 1985
84	Law Society of the ACT	19 May 1986
104	Law Society of New South Wales	31 December 1985
85	Law Society of South Australia	8 May 1986
118	Law Society of South Australia	12 August 1986
81	Law Society of Tasmania	May 86
117	Law Society of Western Australia	25 August 1986
28	Rev Fr B Lucas	29 November 1985
66	Lutheran Church of Australia	19 March 1986
31	E Magnusson	3 December 1985
114	TJ Martin QC, Sydney	22 October 1986
26	NT Department of Law (PF Conran)	25 November 1985
37	Women's Adviser's Office, Dept of Premier and Cabinet, South Australia	16 December 1986
2A	CR McDonald, Barrister, Darwin	20 November 1985
101	The Hon Justice RE McGarvie, Supreme Court of Victoria	14 July 1986
28	D Mildren QC, Darwin	20 November 1985
90	The Hon Justice P Murphy, Supreme Court of Victoria	4 June 1986
103	National Freedom Council
106	National Police Working Party on Law Reform	July 1986
112	New South Wales Bar Association	21 October 1986
82	SR Norrish, Barrister, Sydney	14 May 1986
4	Northern Territory Department of Law	18 November 1985
5	Northern Territory Police	14 November 1985
69	S Odgers	4 April 1986
71	S Odgers	4 April 1986
1	The Hon Mr Justice CW Pincus, Federal Court of Australia	November 1985
41	Professional Association for Applied Anthropology and Sociology, Executive Committee	2 July 1986
51	Professional Association for Applied Anthropology and Sociology	20 January 1986
33	Bishop G Robinson	3 December 1985
44	G Rosendahl	20 December 1985
115	Dr B Selinger, Dr E Magnusson	1 April 1986
	Professor PW Sheehan, University of Qld	7 November 1985
8	A Skyring	27 November 1985
123	The Hon Justice Sheppard, Federal Court of Australia	28 October 1986
75	The Hon Mr TW Smith QC	13 March 1986
100	The Hon Mr TW Smith QC	July 86
105	The Hon Mr TW Smith QC	August 86
121	The Hon Mr TW Smith QC	30 November 1986
54	Standards Association of Australia	22 January 1986
122	Standards Association of Australia	2 July 1986
108	C Tapper	19 September 1986
39	Dr DW Tilstone	24 December 1985
46	RJ Tomkins, Assistant Commissioner of Taxation	January 1986
56	Trade Practices Commission, Corporate Planning and Services	19 February 1986
77	Trade Practices Commission	9 April 1986
96	Trade Practices Commission	27 June 1986
119	Trade Practices Commission	21 July 1986
14	CR Tucker	8 November 1985
32	P Waight, Australian National University	3 December 1985
62	P Waight, Australian National University
15	Western Australian State Assessment Panel for Translators and Interpreters	15 November 1985
11	Council for Civil Liberties (WA)	November 1985
76	Dr NH Young, Avondale College	15 April 1986
89	The Hon Justice H Zelling, CBE, Supreme Court of South Australia	2 June 1986

Submissions before the Interim Report
Written submissions

SN Ahmed	DP 16
The Hon Justice K Anderson, Supreme Court, Victoria	DP 16
Acting Asst Commissioner WL Antill, Australian Federal Police, Canberra	DP 16, IP 3
Australian Council on Population and Ethnic Affairs	RP 8
Australian Institute of Multicultural Affairs	RP 8
Australian Medical Association	RP 13, 16
GC Balthazaar	RP 5
F Bancroft, Australian Finance Conference	RP 9
Bar Association of NSW	RP's 9, 15, 16
Bar Association of Queensland	RP 6
Bar Association of Western Australia	DP 16, IP 3
Dr A Bartholomew, Health Commission, Victoria	RP 11
RJ Bartley, Chairman, Licensing Courts of NSW	RP 3, 8
Chief Superintendent WH Bennett QPM, Australian Police College	DP 16, IP 3
EM Bingham QC MHA, Attorney-General, Tasmania	RP 12, 15, 16
The Hon Sir Richard A Blackburn OBE C St J, Chief Justice,	DP 16, RP 3-9, 11,
ACT Supreme Court	12, 16
The Hon Justice J Bland, County Court, Victoria	DP 16
The Hon Sir Nigel Bowen KBE, Chief Judge, Federal Court of Australia	RP 9
MD Broun QC, Sydney	DP 16, RP 8
B Brown, Secretary, Supreme Court of NSW Rules Committee	RP 13
R Brownlowe	DP 16
JWK Burnside, Barrister, Melbourne	DP 16, RP 3
The Hon Justice E Butler, Family Court, Tasmania	DP 16, IP 3
JM Callaghan SM, Sydney	DP 16, IP 3
FH Callaway, Barrister, Melbourne	DP 16
IC Campbell, Barrister, Sydney	DP 16
The Hon Justice MW Campbell, Workers' Compensation Commission, NSW	DP 16, IP 3
Chancery Bar Association	DP 16, RP 3
DJ Cook, Chief Stipendiary Magistrate, Queensland	DP 16
WR Court, Registrar, Family Court, Hobart	RP 8
GK Cox, Country Roads Board, Victoria	DP 16
WJE Cox, Crown Advocate, Tasmania	DP 16
PR Cranswick, Dobson, Mitchell & Allport, Solicitors, Hobart	DP 16
Sir George Crawford Kt, Supreme Court, Tasmania	DP 16, RP 6, 14, 16
Criminal Bar Association, Victoria	DP 16, IP 3, RP 5, 8, 11, 12
Dr DM Cunningham, IATROS, NSW	DP 16
P Cunningham	RP 6
CR Deller, Sexual Assault Referral Centre	DP 16
Father FW Devoy, Australian Episcopal Conference	DP 16
The Hon Justice JM Didcott, Republic of South Africa	DP 16
M Diserio, Associate to Justice Northrop	RP 6
MF Dixon	IP 3
PM Donohoe, Barrister, Sydney	DP 16
The Hon SS Doumany, Minister for Justice and Attorney-General for Queensland	DP 6
MM Dwyer, Stipendiary Magistrate, Brisbane	RP 3-7
Dr DE Edgar, Institute of Family Studies, Melbourne	DP 16
Clifford HC Edwards QC, Law Reform Commission, Manitoba	RP 16
L Edwards, Micrographics Association, Sydney	RP 4
ML Edwards	DP 16
The Hon Sir Richard Eggleston Kt QC, Monash University,	DP 16, RPs 3-5, 8,
Victoria	10, 14, 16, Draft Interim Report
The Hon Justice Elliott, Family Court, Brisbane	RP 14
Ethnic Affairs Commission of New South Wales	RP 6
Dr DP Farrington, Cambridge University	DP 16
CF Flint, Institute of Engineers, Canberra	DP 16, IP 3
C Fogarty, Secretary, Standing Committee on Constitutional and Legal Affairs	DP 16
The Hon Justice IF Fogarty, Family Court, Melbourne	RP 13
The Hon Justice RJA Franki, Federal Court, Sydney	DP 16, RP 3, 9
His Eminence Sir James Cardinal Freeman KBE, Catholic Archbishop of Sydney	DP 16, RP 5
The Hon Justice I Gallop, Supreme Court, Australian Capital Territory	RP 8
Associate Professor B Gandevia, Sydney	DP 16
The Hon Justice K Gee QC, District Court, New South Wales	DP 16
EW Gillard QC, Melbourne	DP 16
The Hon Justice HH Glass, Court of Appeal, New South Wales	RPs 6, 8-14, Draft Interim Report
AH Goldberg QC, Melbourne	DP 16
G Golden, Department of Law, Victoria	RP 6
AW Goldsworthy, GIO Building Society, South Australia	DP 16
WGS Gotley, Anglican Church Diocese of Sydney	RP 16
Mrs Graham	IP 3
Judge WM Grant-Taylor, Chief Judge, District Court of Queensland	DP 16
AJ Grassby, Commissioner for Community Relations	DP 16, RP 8
The Hon Justice GSM Green, Supreme Court, Tasmania	DP 16
KB Green, Micrographics Association of Australia	RP 3, 4
G Griffin	RP5
The Hon KT Griffin MLC, Attorney-General, South Australia	DP 16
EM Haddrick, Attorney-General's Department, Canberra	RP 6
DW Hammond SM, Victoria	DP 16
Dr S Harbison	DP 16
RG Hardiman, Deputy Registrar, ACT Supreme Court	DP 16, IP 3
B Hart	RP 13
The Hon Justice P Hase, Family Court, Melbourne	RP 14
His Honour Judge D Heenan, WA District Court	DP 16, IP 3, RP 3
LJ Heenan	RP8
CL Hermes, Chief Magistrate, ACT Magistrates Court	RP 3, 6, 8, 12, 16, Draft Interim Report
The Reverend Dr J Hill, Catholic Institute of Sydney	RP 5, 6
Professor GW Hinde, University of Auckland	DP 16
The Hon Justice MB Hoare, Queensland	DP 16, IP 3
AS Hodge, Law Reform Commission, Hong Kong	DP 16
A Hogan, Legal Workshop, Australian National University	RP 6, 8
KH Hogg CSM, Western Australia	DP 16
GD Holmes, Attorney-General's Department, Canberra	RP 16
DF Hore-Lacy	DP 16
FM Horwill, Family Court, Melbourne	DP 16, IP 3
BG Hosking	DP 16, IP 3, RP 8
Reverend Robert Howell	RP 16
MD Huebner, Lord Chancellor's Office	DP 16, RP 3
The Hon Justice D Hunt, Supreme Court, New South Wales	RP 14
Ms Hylton	RP 6
W Jegorow MBE, Federation of Ethnic Communities' Councils of Australia	RP 8
The Hon Dr HA Jenkins MP, Speaker of the House of Representatives	RP 5
DA Jessop	DP 16, IP 3, RP 16
I Johnson	DP 16
P Judd, Department of Immigration, Canberra	DP 16
The Hon Justice WJ Kearney, NT Supreme Court	RP 14
P Kell, General Accident Fire & Life Assurance Corporation Limited	DP 16
The Hon Justice J Kelly, Supreme Court, ACT	RP 8
A Kelman	RP 3
RWH Kiss, Kienzle Instruments Australasia Pty Ltd	DP 16
JH Knowles	DP 16
La Trobe Valley Womens' Refuge Group	DP 16
R Langen-Zueff	RP 8
Law Commission (England)	DP 16, RP 3
Law Council of Australia, Evidence Reference Committee	IP 3
Law Reform Commission of Queensland	DP 16
Law Reform Commission of Tasmania	DP 16, RP 10, 16
Law Reform Commission of Western Australia	DP 16, R 5
Law Society (England)	DP 16, RP 3
Law Society of NSW and the Criminal Law Committee	DP 16, RP 3-5, 8-12, 14-16
Law Society of Queensland	DP 16, IP 3, RP3-8, 10-16
Law Society of South Australia	RP 6
Legal Services Commission, New South Wales	RP 8
The Hon Justice TE Lindenmayer, Family Court, Brisbane	RP 3
JE Linton, Records Management Association of Australia	RP 4
P Loof, Commonwealth Crown Solicitor's Office	RP 16
London Common Law Bar Association	DP 16, RP 3
D Maclean, Women Lawyers' Association of NSW	DP 16, IP 3
Commissioner R McAulay, Commissioner of Police, NT	DP 16, RP 5
The Hon Justice RE McGarvie, Supreme Court, Victoria	DP 16, RP 5
The Hon Justice DG McGregor, Federal Court, Sydney	RP 7, 9
Janet McIlraith, Federal Court, Sydney	DP 16
The Hon Sir Murray McInerney Kt, Supreme Court, Victoria	DP 16, IP 3
M McKevitt	DP 16
F Maher, University of Melbourne	RP 16
Mallesons, Solicitors, Melbourne	DP 16
Mallesons/Australian Bankers Association	RP 3
Dr IH Martin, NHS Committee	DP 16
His Honour Judge TJ Martin QC, District Court, Sydney	RP 3, 10, 11, 14, Draft Interim Report
RG Matson	DP 16, IP 3
Micrographics Association	DP 16
P McNamara, University of Adelaide	RP 11
DT McVeigh, Minister for Home Affairs and Environment	DP 16
D Meagher QC, Melbourne	RP 16, Draft Interim Report
V Menart, Solicitor, Sydney	RP 8
R Merkel QC, Melbourne	DP 16
CF Mervyn-Jones, Commercial Law Association of Australia Ltd	RP 3
JE Middleton	DP 16, IP 3
Chief Commissioner SI Miller SB St J QPM, Victoria Police	DP 16, IP 3
The Hon BK Miller MLC, Attorney-General, Tasmania	RP 4, 6
T Molomby	DP 16, IP 3
M Montalto	DP 16
The Hon Justice T Morling, Federal Court, Sydney	RP 8, 9
L Murphy	DP 16
The Hon Justice L Murphy, High Court of Australia	RP 6, 14, 16
The Hon Justice BL Murray, Supreme Court, Victoria	DP 16
IA Myers, Department of Aboriginal Affairs (Cth)	RP 12
GU Nathan	RP 6
National Police Working Party	RP 4-6, 8, 11-16
EF Nelson	DP 16, IP 3
A Nicholas	DP 16
Professor RS Northcote, SA Institute of Technology	RP 3
The Hon Justice PE Nygh, Family Court, Sydney	DP 16, IP 3, RP3-16, Draft Interim Report
B O'Brien, University of Melbourne	DP 16
Dr D O'Connor, Australian National University	DP 16, IP 3
L Ollif	DP 16, IP 3
Canon HF Palmer	RP 16
PA Pengilley	DP 16
PGS Penlington	RP 3
C Petre, S Bullock, H Kiel, E Brown,L Cooper, J Kirkwood	RP 16
J Phillips, University of Melbourne	RP 16
C Porter QC, Sydney	DP 16
AJ Robinson, RACV General Insurance Pry Ltd	DP 16
MI Robinson, Chief Commissioner, Tasmania Police	DP 16
DW Rogers, Solicitor, Melbourne	IP 3
J Rosenberg	DP 16
Dr G Rosendahl, Western Creek Health Centre
D Ross, Barrister, Melbourne	DP 16
EL Ross, Children's Court Offices, Melbourne	DP 16
ML Rutherford, Barrister, Sydney	DP 16
Archbishop Rush, Catholic Archbishop of Brisbane	RP 16
Professor R Sackville, Chairman, NSW Law Reform Commission	DP 16
P Schultz	DP 16
Stephen Sellers	DP 16
Professor P Sheehan, University of Queensland	RP 3, 6
The Hon Justice IF Sheppard, Federal Court of Australia, Sydney	RP 3, 9, 10, 15, 16, Draft Interim Report
B Sherman	RP 8
The Honourable TW Smith QC	DP 16, IP 3, RP3-12, 14-16, Draft Interim Report
DB Sneddon, Victorian Hospitals Association Ltd	RP 16
T Sobolewski	DP 16, IP 3
P Steiner, Barrister, Melbourne	DP 16
L Stephens	DP 16, IP 3
R Stewart	DP 16, IP 3
The Hon Sir Laurence Street KCMG Kt StJ, Chief Justice of NSW	DP 16
PD Street	RP 3
Survey of Victorian Magistrates	RP 5, 6
W Szwidowski	IP 3
LG Tanner QC, Sydney	DP 16
Colin Tapper, Oxford University	DP 16, IP 3
RG Thomas, Macquarie University	IP 3
Dr D Thomson, Monash University	RP 3, 6, 11, 12, 15
His Honour Judge BR Thorley, NSW District Court	RP 3, 8
His Honour Judge BR Thorley and Judges of the NSW District Court	RP 6
S Torr, AMA/ACHS Peer Review Resource Centre	RP 16
Trade Practices Commission	DP 16, IP 3, RP 3, 5, 7, 14-16
DN Veron	DP 16
Victorian Chief Justice's Law Reform Committee	RP 3, 5
Commissioner KH Viney, Tasmania Police	RP 4, 5, 7
The Hon Justice TW Waddell, NSW Supreme Court	RP 3
P Waight, Australian National University	RP 8, 11
ERH Walker, Solicitor, Melbourne	DP 16
L Watson	RP 3
M Weinberg, Melbourne University	RP 3,12
The Hon Justice WAN Wells, Supreme Court, South Australia	DP 16, IP 3, RP 3
J Whyte, Grace Bros Pty Ltd	DP 16, RP 4
R Wighton, Department of the Premier & Cabinet	DP 16
Professor G Williams, Cambridge University	IP 3
The Hon I Wilson MP, Minister for Home Affairs and Environment	DP 16
C Wiltshire, National Women's Advisory Council	RP 5, 6
HF Woltring, Attorney-General's Department, Canberra	RP 12-14, Draft Interim Report
Women's Co-Ordination Unit	RP 5
B Wood	RP 8
JTD Wood, Office of Women's Affairs, Canberra	RP 5

Oral submissions

A Armstrong	DP 16
Attorney-General's Department, Commonwealth	DP 16
Australian Bankers Association	DP 16
Bar Association of NSW	DP 16, IP 3
Dr A Bartholomew	DP 16
The Hon Justice B Beaumont, Federal Court, Sydney	DP 16, IP 3
DM Berne, QC, Melbourne	DP 16, IP 3
Dr Best, President, Australian Medical Association	DP 16
The Hon Sir Richard Blackburn OBE C StJ, Chief Justice, ACT Supreme Court	DP 16, IP 3
Professor A Blackshield, La Trobe University	DP 16
The Hon Sir Nigel Bowen KBE, Chief Judge, Federal Court	DP 16
R Briglia	DP 16, IP 3
The Hon Justice R Brooking, Supreme Court, Victoria	DP 16, IP 3
MD Broun QC, Sydney	DP 16, IP 3
Dr RA Brown	DP 16
Mr J Brownie	DP 16, IP 3
T Buddin, University of NSW	DP 16, IP 3
Card Charge Services	DP 16
A Chernov QC, Melbourne	DP 16, IP 3
Roger Cook (Chancery Bar Association)	DP 16
Janet Coombs, Barrister, Sydney	DP 16
FC Costigan QC, Melbourne	DP 16, IP 3
Judge Walter Early Craig, Arizona	DP 16
Department of Home Affairs	DP 16
P Donohoe
The Hon Sir Richard Eggleston Kt QC, Monash University	DP 16
The Hon Justice J Ellis, Family Court, Canberra	DP 16
The Hon E Evatt, Chief Judge, Family Court	DP 16
Family Law Council	DP 16
M Finnane QC, Sydney	DP 16, IP 3
The Hon Justice J Fogarty, Family Court, Melbourne	DP 16
L Foreman	DP 16
Dr R Fox	DP 16
Dr R Francis	DP 16
The Hon Sir James Gobbo, Supreme Court, Victoria	DP 16, IP 3
His Hon Judge J Gorman QC, County Court, Victoria	DP 16, IP 3
The Hon Justice Gunn, Family Court, Sydney	DP 16
KM Haine QC, Melbourne	DP 16, IP 3
Professor S Hammond, Melbourne University	DP 16
Mr Hardman	DP 16
L Hart QC, Melbourne	DP 16, IP 3
Z Hartstein, Registrar, ACT Supreme Court	DP 16
His Honour Judge Hassett, County Court, Melbourne	DP 16, IP 3
D Heydon, Barrister, Sydney	DP 16, IP 3
Dr B Headey	DP 16
TJ Higgins, Solicitor, Canberra	DP 16
His Honour Judge House, County Court, Melbourne	DP 16, IP 3
Mr Hurlburt QC, Alberta	DP 16
Institute of Family Studies	DP 16
G James QC, Sydney	DP 16, RP 6
The Hon Mr Justice K Jenkinson, Supreme Court, Victoria	DP 16, IP 3
His Honour Judge G Just, County Court, Melbourne	DP 16, IP 3
B King	DP 16, RP 5
The Hon LJ King, Chief Justice of South Australia	DP 16, IP 3
A Lauer	DP 16
Law Council of Australia, Evidence Committee	IP 3
Law Institute of Victoria	DP 16, IP 3
Law Society of South Australia	DP 16, IP 3
Mr Linton	DP 16
T Lloyd, Chancery Bar Association	DP 16
Sally MA Lloyd-Bostock, SSRC Centre for Socio-Legal Studies, Oxford	DP 16
Dr A Lovegrove	DP 16
The Hon Sir George Lush, Supreme Court, Victoria	DP 16, IP 3
The Hon Justice RE McGarvie, Supreme Court, Victoria	DP 16, IP 3
Janet McIlraith	DP 16
Micrographics Association of Australia	DP 16
The Hon Sir Murray McInerney, Supreme Court, Victoria	DP 16, IP 3
K Mille	DP 16
Sir John Minogue, Victorian Law Reform Commissioner	DP 16
The Hon Justice L Murphy, High Court of Australia	RP 6, 14, 16
The Hon Justice Nygh, Family Court, Sydney	DP 16
A Oakey	DP 16
Dr D O'Connor, Australian National University	DP 16
Queensland Law Society, Evidence Committee	DP 16, IP 3, RP 1, 3
The Hon Justice Andrew Rogers, NSW Supreme Court	DP 16, IP 3
D Ross	DP 16, IP 3
R Rutheford	DP 16
The Hon Justice IF Sheppard, Federal Court, Australia	DP 16, IP 3
C Simpson, Barrister, Sydney	DP 16
M Singer	DP 16
R Smith	DP 16, IP 3
The Hon Justice A Southwell, Supreme Court, Victoria	DP 16, IP 3
His Honour Judge G Spence, County Court, Melbourne	DP 16, IP 3
G Stretton, Solicitor, Canberra	DP 16
The Hon Justice Sweeney CBE, Federal Court	IP 3
P Thompson (Lord Chancellor's Office)	DP 16
Dr D Thomson, Monash University	DP 16
His Honour Judge BR Thorley, District Court of NSW	DP 16
Trade Practices Commission	DP 16
Victorian Bar	DP 16
Professor A Wearing	DP 16
The Hon Mr Justice Wells, Supreme Court, South Australia	DP 16, IP 3
His Honour Chief Judge Whelan QC, County Court, Melbourne	DP 16, IP 3
The Hon Justice Zelling, Supreme Court, South Australia	DP 16

[Return to Top]

Appendix C: Developments in the laws of evidence

Introduction

Witnesses

Sworn and unsworn evidence

Manner of giving evidence

Rules of admissibility

Aspects of proof

Miscellaneous

Footnotes

Introduction

1. Interim Report. The review of existing law required for the reference revealed many inconsistencies between the laws of evidence of the States and Territories. It also revealed many areas of uncertainty and many other deficiences. These were described in the Interim Report [1] and it is not proposed to repeat that material. The Interim Report, however, dealt with the law as at 30 June 1984 and it is necessary to bring the review up to date.

2. Outline of Appendix C. In the paragraphs that follow are set out developments, since 30 June 1984, in the statute law and relevant cases which have resulted in differences and uncertainities in the law and other difficulties. The sequence of topics followed is that used in the proposals.

Witnesses

3. Competence of witnesses. The test of psychological competence of witnesses is whether the witness understood the nature and consequences of the religious oath. The Interim Report noted a difference between English and Queensland decisions on whether the religious oath test of competence required the witness to have a belief in a divine being and divine punishment. Recent Western Australian decisions support the view that such a belief is necessary. [2] The cases highlight the need for a secular test for psychological competence. [3] Reference was made in the Interim Report to the differing legislation enabling children not competent to take the oath to give unsworn evidence. [4] In New South Wales there has been legislation enabling children not competent to take the oath to give unsworn evidence in proceedings under the Crimes Act 1900 (NSW) and the Child Welfare Act 1939 (NSW). [5] These provisions did not apply generally and therefore, there was no provision applying in federal courts sitting in New South Wales. By recent amendment to the Oaths Act 1900 (NSW), a similar provision now applies in all proceedings. [6] Reference was also made in the Interim Report to legislation in South Australia and Victoria enabling the court to excuse, the spouse of an accused from giving evidence for the prosecution. [7] In New South Wales a statutory discretion has been created to excuse spouses of an accused charged with child assault offences. [8] In the ACT, the Evidence Ordinance 1971 (ACT) was amended [9] to make the spouse of a person charged with a domestic violence offence a compellable witness in the proceeding.

4. Compellability of witnesses. As a general rule, all competent witnesses are compellable witnesses. A recent New South Wales decision raises the possibility of a discretion to exempt experts who have not been connected with the facts or history of a particular case. [10] There is a difference of view, however, about the existence of such a discretion and it is difficult to justify in principle. [11] In most jurisdictions a spouse of the accused was a noncompellable witness for the prosecution in circumstances that differed between jurisdictions. Recently, the Northern Territory law was changed to make spouses compellable in all cases. [12] The Interim Report [13] noted an absence of rules to control the situation where the prosecution calls a co-accused to give evidence and that co-accused has not been sentenced or the proceedings not otherwise terminated against him, It noted the practice in England of encouraging conclusion of the proceedings involving the co-accused. No Australian authority was identified. Recently, however, it has been held that the trial judge has a discretion to prevent the co-accused giving evidence. [14]

Sworn and unsworn evidence

5. Sworn evidence. The law enabling witnesses to give evidence on affirmation instead of religious oath differs. [15] Legislation has been enacted in Victoria enabling a person to give evidence by affirmation when a person objects to taking a religious oath [16] or it is not reasonably practicable to administer a religious oath. [17] It also enables affirmation to be given in the form suitable for two or more persons. This latter provision differs from other jurisdictions. [18] In the ACT, the Oaths and Affirmations Ordinance 1984 (ACT) has been enacted enabling witnesses to affirm at their option and enabling the court to require a witness to affirm where, the witness is not competent to take the religious oath or where the latter is not reasonably practical. In providing for affirmations it removes the doubts identified in the Interim Report about whether a witness could affirm. [19]

6. Unsworn evidence. At the time of the Interim Report the right of an accused to make an unsworn statement at his trial existed in New South Wales, the ACT, Victoria, Tasmania and South Australia. It has since been abolished in South Australia. [20] The topic has been considered by the Law Reform Commission of Victoria and the Law Reform Commission of New South Wales both of which recommended retention subject to certain reforms. The Victorian proposals have been implemented. [21] The recommendations have been discussed in connection with proposals in this area. [22] In the ACT, limits have been imposed on what an accused may say in an unsworn statement where the trial is one for a prescribed sexual offence. [23] No reference may be made to the complainant's sexual reputation or of the complainant's sexual experience unless evidence of that experience has already been given by other witnesses.

Manner of giving evidence

7. The admissibility of documents on which cross-examination has taken place. The technical nature of the rules that determine the admissibility of such documents was brought home in the recently reported decision in Trade Practices Commission v TNT Management Pty Ltd (TPC v TNT), [24] turning as they do on whether the document was that of the witness, whether it was called for and inspected, whether it was used to refresh memory (and whether it refreshed memory) and whether the cross-examiner could be compelled to tender the document.

8. Refreshing memory. A number of situations can arise where a witness attempts to revive his or her memory with a document. Different rules apply depending on circumstances such as whether the memory is revived or not and whether the attempt is made out of court or in the witness box. [25] The Interim Report noted uncertainty about whether a document may be tendered (and admitted) in evidence where it does not revive the witness' memory but the witness swears to its accuracy. Qualified support for the view that it may be tendered and is admissible was given recently in TPC v TNT. [26] If this is the correct view of the law it is curious that it should be possible to have the document admitted where it does not revive memory but not possible where it does. It is true that where the memory is revived oral evidence will be given of the matters in it. In both instances, however, the document, being contemporaneous with the events recorded (as it must be), is likely to be the best evidence available. Further, the contents of the document can be placed before the court by reading it. It is not necessary to have the document admitted in evidence to achieve the result of revealing its contents to the court.

Rules of admissibility

9. Relevance. The Interim Report [27] asserted that it is generally accepted that evidence that is not relevant to the issues in the particular case is not admissible and that evidence that is so relevant is admissible unless an exclusionary rule excludes it - that is, it is prima facie admissible. This analysis has not been directly challenged. In one reported case, however, it has been said that 'relevance does not result in evidence being admissible. It is merely a condition precedent to admissibi lity'. [28] Applying this test it was held that evidence from an expert on stylistic analysis was clearly relevant but this did not result in the evidence being admissible. In the same case, the opinion evidence was excluded but on the basis of the rejection of a vital link in the expert's argument and the lack of probative value of the evidence having regard to the period that had elapsed between the interview with the police and the essay written by the accused for comparison purposes and the problem of trying to compare an essay with an interview. If rejected on this ground, the result could be justified on the basis of the discretion inherent in the rule of relevance, although this was not relied upon. The precise legal basis for exclusion was not made clear. The case highlights the need to spell out the distinction between logical relevance and legal relevance and the discretion inherent in the latter.

10. The Commission's review of the law identified different statements about the connection required between the tendered evidence and the issues in the case to satisfy the test of relevance. [29] The different formulations included that the evidence must:

be part of the transaction;

render another fact probable;

increase the probability of the existence of the fact, however marginally;

be of sufficient probative value; and

be submitted to a balancing of probative value and other policy considerations.

A review of recent cases shows that the differences of view continue. In particular, there has been support for the second of the definitions referred to above, [30] the fourth [31] and the fifth. [32]

11. Hearsay. The hearsay rule is generally defined as a rule excluding evidence of assertions of persons other than the witness who is testifying tendered to prove the truth of that which was asserted. Confusion continues, however, as to what is hearsay evidence. [33] The rule continues to exclude evidence of probative value and importance: for example, evidence given at a court of marine inquiry, [34] a confession of a third party who could have committed the crime in question [35] and the sworn statement of an alibi witness who died before the trial. [36] It has, however, been held that a self-serving statement was admissible although the basis is not clear. [37] To overcome the restrictions of the rule it has on occasions been ignored. [38] The common law exception relating to evidence of statements as to state of mind has been restricted by the House of Lords to situations where the state of mind is in issue or of direct or immediate relevance to an issue. [39] Whether this will apply in Australia remains to be seen. The decision raises the possibility of similar restrictions being placed on other exceptions to the hearsay rule.

12. There have also been changes to the legislation on this topic. Legislation has been introduced in the Northern Territory modelled on the Commonwealth Business Records Legislation. [40] This trend to uniformity is to be welcomed but the legislation repeats unsatisfactory provisions. in particular, the requirement that information be supplied by a 'qualified person', a person associated with the relevant business, is included. This has the effect of preventing the business records provision being available for modern computer records where the information is supplied by the customer and not by the employees of the business - for example, automatic bank teller machines. A recent example of the limiting effect of this requirement is a case where it was held that the computer records made and kept by a computer bureau for other businesses were not admissible under the legislation because the factual information could not be said to be supplied by a 'qualified person'. [41] The Evidence Amendment Act 1985 (Cth) altered the Commonwealth provisions about evidence authenticating business records. It now allows persons with no personal knowledge of the records or record keeping system to give that evidence. Other legislative changes include: the Evidence (Amendment) Act 1985 (Vic) amending provisions relating to books of account and facilitating their admission and that of maps and plans; and the amendment of the Family Law Act 1975 (Cth) in relation to the admissibility of reports of counsellors and court experts - s 62A(6) and 63(2) and Rules 0 25, r 5. [42]

13. Reference was made in the Interim Report to uncertainty about the interaction of federal and State legislation relating to business records. [43] The division of judicial opinion continues. A recent decision of the Federal Court held that where a party seeks to have a business record admitted, the Commonwealth Business Records provisions apply and cover the field. [44] Reference was also made to the decision of Justice Windeyer in Ferguson v Union Steamship Company of New Zealand[45] where his Honour held that the then provision requiring evidence to be given orally in open court prevented the State laws relating to the admissibility of documentary evidence applying. This has recently been followed in TPC v TNT. [46]

14. As to the res gestae exception to the hearsay rule, [47] the Interim Report [48] noted the uncertainty that exists about whether the propositions stated by the Privy Council are the law in Australia in view of the doubts raised by the High Court. [49] The Privy Council required that the statement be made in such circumstances as to exclude the possibility of concoction or distortion. While the Privy Council approach has been applied in England, [50] the issue is yet to be resolved in Australia. [51]

15. In the ACT, the rules of law or practice enabling evidence of the making of a complaint by the victim of a sexual offence and the terms of such complaint are abolished and no such evidence may be admitted in a prescribed sexual proceeding. [52] This presumably refers to the common law rules enabling the prosecution to adduce evidence of a recent complaint for the limited purposes of showing consistency on the part of the victim and negativing consent. [53] The result is, presumably, that the jury will assume that no recent complaint was made, no evidence having been adduced. This may be criticised as unduly favouring the accused. [54]

16. Criticisms of the existing law were made in submissions. In particular, it was argued that the rule continues to create problems in the Family Court by excluding evidence about the wishes of children and the basis of those wishes. Under the Family Law Act and regulations, procedures exist enabling some evidence to be given - for example, in counsellor's reports - but the scope is limited. Discretionary powers are given to the court but judicial practice varies. The hearsay rule (together with the rules relating to opinion evidence) also creates difficulties in Trade Practices cases where issues arise requiring market analysis and an assessment of the competitive effect of conduct. Existing law limits the use of survey evidence and the use of statistics produced by government statisticians - usually the best evidence available. [55]

17. Opinion evidence. Differences of view exist about whether and to what extent opinion evidence of an expert is admissible where the basis of that opinion is not supported by admissible evidence. The Interim Report noted the different views that exist about this question. [56] In a recent High Court decision, a 'basis rule' was impliedly rejected although the possibility of rejection of the evidence where it is not based upon facts proved by other admissible evidence was acknowledged. [57] The definition of the alleged rule preventing opinion evidence being given about the 'ultimate issue' was considered in TPC v TNT. [58] The traditional formula was rejected and support given for a rule that no evidence can be received upon a question where the answer involves the application of a legal standard. The application of the 'ultimate issue' rule remains arbitrary. [59]

18. Further support has emerged for a type of 'Frye Test' for expert opinion evidence. [60] In R v Bonython[61] it was stated that in deciding whether expert opinion evidence may be given, the judge must decide whether the 'subject-matter of opinion is such that an expert may properly give evidence about it'. It was held that it was relevant to ask whether the 'techniques and technology [used) have a sufficient scientific basis to render the results arrived at ... pan of a field of knowledge which is a proper subject of expert evidence. Thus a Fryetype test has now been held to apply in three States: New South Wales, South Australia and Queensland, leaving unclear the situation in the rest of Australia. It is, however, an approach that should not be adopted in the light of the problems experienced in the United States in applying the 'Frye Test'. [62]

19. Admissions. The Interim Report [63] identified many uncertainties and inconsistencies in the law relating to the admissibility of evidence of admissions - assertions allegedly made by or on behalf of a party to a case. The uncertainities created by R v Driscoll[64] have been substantially resolved by R v Stephens[65] where it was held that the document recording an interview with the accused but not signed by the accused should generally be excluded from evidence by the probative value/prejudice discretion. It remains uncertain as to whether a pleading in one action is of is not admissible in a subsequent action as an admission. [66] Different views have been expressed about whether an accused can have a co-accused's admission admitted in evidence where the evidence is not yet part of the Crown case. [67]

20. Other deficiencies in the law remain. Evidence of statements of an employee who had personal knowledge of the matters stated is not admissible against the employer unless the employee was acting on behalf of the employer when making the statement. [68] The practice continues of admitting evidence that an accused was given an opportunity by police to give his version of the facts - the only control suggested being that the judge may exclude such evidence under the probative value/prejudice discretion. [69] The rule that, to be admissible, a confession must be voluntary, continues to give little protection. [70] Despite repeated calls for the tape-recording of police interviews and the obvious savings of time and costs [71] that would follow in court proceedings, tape-recording has yet to become a widespread practice. Instead, energies are being directed into considering whether video-taping should be employed in preference to audio-taping. On occasions, an accused person wishing to challenge the voluntariness of a confession may prefer to do so in the presence of the jury and therefore wish to waive his right to a voir dire. Judicial views vary, however, as to whether a voir dire must always be held in such circumstances.

21. The Interim Report referred to different views expressed in Cleland v R[72] about the trial judge's discretion to exclude a voluntary confession if he or she considers it would be 'unfair to use it against the accused'. [73] The conclusion there expressed was that Chief Justice Gibbs and Justice Wilson saw the discretion in terms of improper police pressure, Justice Deane saw it in terms of procedural or substantive fairness, Justice Dawson saw the discretion as one related to the reliability of the alleged confession and Justice Murphy saw the discretion as an aspect of the general discretion to exclude evidence more prejudicial than probative. In the recent case of Williams v R, [74] Chief Justice Gibbs referred to the question and stated that, in that particular case, it would not be unfair to use the confessions against the applicant even though they were obtained improperly or unlawfully and in that sense obtained unfairly. He explained this by referring to the view of Justice Dawson in the Cleland case stating that the 'unfair methods by which evidence had been obtained may not affect the reliability of the evidence, and in consequence it may not be unfair to admit it against the accused'.

22. Convictions as evidence of facts on which based.[75] in Queensland, South Australia, Northern Territory and the ACT, legislation has abrogated the rule in Hollington v Hewthorn[76] that evidence of a conviction cannot be used to prove the facts on which the conviction was based. In the other jurisdictions the rule applies, with the exception of Western Australia. There the Full Court of the Supreme Court has declined to follow Hollington v Hewthorn.[77]

23. Character and conduct evidence. The Interim Report [78] referred to the debate about whether and in what circumstances evidence of prior misconduct of the accused may be admitted on the basis that it tends to prove that he or she had a 'propensity'to behave in a relevant way. The debate continues. [79] At the same time evidence relevant because it shows a particular propensity has been admitted. [80] The Interim Report [81] expressed criticism of the different tests put forward in the High Court decision of Sutton v R[82] While one commentator has suggested that the differences should not cause difficulties in clear cases, [83] the problem is that it is in the borderline cases that the decision as to whether or not to admit evidence of prior misconduct is critical and difficult and it is in those cases that certainty as to the test to be applied is important.

24. The Interim Report [84] referred to differences of view in the Federal Court as to the appropriate test to apply in deciding whether to admit evidence of prior misconduct of a party in civil proceedings - for example, alleged prior misrepresentations. The different views were to apply a relevance test or to apply the test for similar fact evidence in criminal trials. In a recent Federal Court decision, [85] it was held that the test for similar fact evidence at criminal trials should apply, but in addition the court had a discretion to reject the evidence if the disadvantages of its admission outweighed the advantages and it would be relevant to consider whether notice had been given. [86]

25. Cross-examination of the accused.[87] The Interim Report [88] referred to the difference in practice that existed between the approach taken in Victoria and the approach taken in other States on the question of the discretion of the trial judge to control cross-examination of the accused as to his credibility. In Victoria the approach has been to permit such crossexamination only in exceptional circumstances. This limitation was not accepted in other jurisdictions having similar legislation, such as Western Australia and Queensland. [89] The High Court recently considered the matter on appeal from Queensland and attempted to resolve the issue. [90] Unfortunately, the end result is confusing and unclear. The High Court accepted the authorities of long-standing that cross-examination of the accused as to bad character and prior convictions should be exceptional. It held, however, that it is incorrect to fetter the discretion in any way and, in particular, to do so by laying down a principle that the exercise of the discretion in favour of the prosecution should be exceptional. The High Court appears to rule that the trial judge should not ask himself when exercising the discretion - 'What is exceptional about this case?' It states that the statute sets out the 'exceptional conditions' in which departures from the blanket prohibition may be allowed. [91] In fact, it is not readily apparent why the statutory conditions should exhaustively state the exceptional circumstances. The High Court held that the discretion is one governed solely by what the interests of justice require in a particular case. [92] It may be asked why in determining what is 'in the interests of justice' it is not relevant to consider the principle stated by Sir Owen Dixon and approved by the present High Court itself that an accused in our legal system is protected from 'disclosure of his discreditable past', unless in 'exceptional circumstances'. [93] The High Court did state that the discretion to allow cross-examination as to credibility should be sparingly and cautiously exercised. It also stated that 'the sole criterion governing its exercise is what fairness requires in the circumstances of the particular case'. [94] It may be, therefore, that the exceptional nature of cross-examination of an accused as to his bad character remains a relevant consideration. The High Court did approve the statement of relevant considerations in R v Brown[95] which include 'that the legislation is not intended to make the introduction of the accused's prior convictions other than exceptional'. It may be that the High Court was concerned solely to address the appellant's argument that the discretion was fettered. At best, the operation of the legislation is left in doubt.

26. A further concern is that this decision is a guide to the operation of existing legislation in jurisdictions other than New South Wales and South Australia. It places any accused person with prior convictions at risk of those prior convictions being revealed should he or she contradict any aspect of the Crown case. [96] Such an approach fails to give adequate weight to the grossly prejudicial effect of the knowledge of an accused's prior convictions, especially where, as in Phillips v R, [97] the accused was charged with breaking into premises as well as rape and the accused had a prior conviction for breaking into premises. The majority view was that the accused was not unfairly prejudiced in relation to the rape charge because this prior conviction did not relate to rape. Because the rapist had broken into the premises and the issue was about identity, however, it is unrealistic to suggest that the prejudice related only to the breaking charge and not the rape charge. Further, the imputations made on the character of the prosecutrix were minor - that she used marijuana - and were matched in any event by the evidence that the accused himself used marijuana. Finally, it was not the accused who initially adduced evidence about the prosecutrix using marijuana. It was the prosecution who chose to do so: the prosecution led evidence of the accused's explanation for his presence on the premises at about the time of the rape, his reason being that the prosecutrix had asked him to obtain marijuana for her. The prosecution led this evidence on the basis that it was a false statement and relied on evidence from the prosecutrix denying that she had asked the accused to obtain marijuana for her. [98]

27. Evidence of accused's character. The Interim Report also referred [99] to uncertainty about whether evidence of the accused's character may be used in determining both whether he is to be believed as a witness and whether he is the sort of person who would break the law as alleged. In New South Wales the issue has been resolved in favour of both uses. [100] The assumption that evidence of prior breaches of the law by a witness is necessarily relevant to credibility persists and creates further dangers. [101]

28. Character and conduct of victims. Legislation has been enacted in the Australian Capital Territory dealing, inter alia, with evidence relating to the character and prior conduct of victims of prescribed sexual offences. [102] Evidence relating to sexual reputation is now inadmissible. Evidence relating to sexual experience with a person other than the accused may not be adduced unless the court gives leave. [103] in Western Australia, the law amended under previous reforming legislation has been further amended. [104] The new legislation maintained the position that evidence of reputation is inadmissible. It repealed the detailed provisions controlling the admission of sexual experience evidence and provided that evidence of disposition of the victim is not admissible. Evidence of sexual experience is inadmissible unless the court gives leave.

29. Identification evidence. It has been the law in England for some time that a detailed warning should be given to the jury when the case against the accused depends wholly or substantially on disputed eye-witness identification evidence [105] This proposition has been accepted and applied in Victoria, Tasmania and Western Australia. [106] The New South Wales Court of Criminal Appeal has continued to maintain its position that it will not follow the English law or treat it as laying down something more than suggestions that trial judges should consider. [107] In the first case noted, the evidence of the prosecution depended entirely on identification by four eye-witnesses. Two of the identifications were very poor. The court described the other two as reasonably strong. Identification was by photographs six months after the event. Two of the witnesses had had a good opportunity to see the criminal. The person was a stranger to the four eye-witnesses. The court placed reliance on the fact of a dock identification at the committal. Such an approach confirms the concern expressed in the Interim Report of the lack of appreciation of the weaknesses and dangers of eye-witness identification evidence. [108] The failure of criticism by the courts to achieve reform in identification methods was again noted in R v Kern. [109]

30. Client legal privilege - legislative change. In Victoria [110] a privilege has been created by legislation for communications made and documents received in respect of legal aid applications. Provisions deal with waiver of the privilege. The same legislation deals with medical privilege and provides that the medical practitioner of the deceased patient may not without the consent of the legal personal representative of the deceased or the spouse or child of the deceased patient divulge information obtained from the patient. It provides further that the protection does not apply where there is no legal personal representative, spouse or child of the deceased. Also in Victoria [111] a statutory privilege has been created for anything said and admissions or agreements reached at a conference with a family mediator in connection with a family mediation centre. This reflects the common law but goes further in that it renders inadmissible evidence of agreements reached. This may be going too far. The clause is silent as to the circumstances in which the privilege may be lost or waived.

31. Client legal privilege - matters of State. An issue has arisen as to the relationship between client legal privilege and public interest privilege. In Attorney-General (Northern Territory) v Kearney[112] Chief Justice Gibbs saw the two privileges as separate and independent. Justice Dawson did not think there was scope for the separate operation of client legal privilege and took the view that it should be considered in the context of the public interest privilege balancing process as an aspect of the public interest in protecting the communication. Justices Mason and Deane did not specifically address the issue. They agreed with the Chief Justice that client legal privilege did not apply on the facts of the case. They did say that they agreed with the Chief Justice's 'reasons for judgment'.

32. Client legal privilege - 'sole purpose' test? The scope of client legal privilege and the application of the alleged 'sole purpose' test - that the privilege attaches to materials and documents that come into existence for the sole purpose of obtaining or giving legal advice - remains unclear. In Packer v Deputy Commissioner of Taxation[113] a Bill of Costs was held to be privileged because it commonly recited the history of the transaction. Trust account ledgers were held to be not privileged unless disclosure would reveal a privileged communication. There was no argument addressed to the problem that the Bill of Costs and Trust account ledger are prepared and kept for several purposes and could not therefore satisfy a ,sole purpose' test. Support was expressed for the view that a lawyer's notes are not affected by the 'sole purpose' test. [114] Uncertainty continues about the position of copies of privileged and non-privileged documents. [115]

Original document privileged, is a copy? In Vardas v South British Insurance Co Ltd[116] privilege was claimed for the copies of investigation reports. The originals were compiled for the sole purpose of obtaining legal assistance and were forwarded to the defendant's lawyers. The copies were made and retained by the defendant's investigator for possible later reference. Applying the sole purpose test literally, they would not be privileged. It was held however, that the copies were protected. First, reliance was placed on the minority test of Justice Jacobs in Grant v Downs. [117] It was also held that Grant v Downs, in speaking of the purpose, is addressing the 'sole purpose' for compiling and recording the information in a document. 'If the sole purpose of this recording is a privileged one, then both the original and all copies are within the umbrella.' It was also held that Grant v Downs did not in any event address the question of the privilege that attaches to a copy of an original document that is itself privileged. [118]

Original document not privileged, can a copy be?Justice Hunt in McCaskill v Mirror Newspaper Ltd[119] held that a copy of a non-privileged document is privileged if the copy was made for the sole purpose of submission of that copy to legal advisers for relevant legal assistance. Justice Clarke in Vardas[120] expressed a tentative view to the contrary. He suggested that Grant v Downs does not address the question of the privilege attaching to copy documents. Justice Wood in Nickmar P/L v Preservatrice Skandia Insurance Ltd[121] agreed with the view of Hunt J, but held that a copy could be privileged when what was involved was selective copying or research or the exercise of professional skill on the part of the lawyer.

33. Waiver of client legal privilege. On the question of waiver of client legal privilege, new ground was broken in TPC v TNT Management, [122] where it was held that client legal privilege had been waived in respect of a witness' proof of evidence where a witness had prior to trial refreshed his memory from the proof. To treat the privilege as waived in that situation would effectively remove the privilege in respect of witnesses' proofs of evidence. The Commission is not aware of any Australian authority that supports this proposition. On the other hand, it has been held that there was no waiver of the privilege in a situation where a privileged document was disclosed to a taxing master at an assessment of costs in the absence of another party. [123]

34. In addition, it has been held that the privilege is not necessarily waived in relation to communications about matters in respect of which they and other privileged communications have been made when the latter are disclosed. There is authority that the issue does not arise until the latter are put in evidence in the trial [124] or at least until an implied intention to waive the privilege is found and fairness justifies the conclusion that privilege has been waived in the related documents. [125] The former proposition has been criticised.

It is, however, respectfully submitted that there are difficulties with the part of the judgment [in Tanter's case] which holds that the test for a waiver of associated documents is whether or not the source document has itself been proffered in evidence ... In so far as the waiver of privilege extended beyond the [source document] itself, it is hard to see how it could make any difference whether or not the document was formally tendered in evidence. The Judge [in Tanter's case] was much influenced by considerations of fairness; but that commodity is not a desideratum only in the course of actions which proceed to trial. Settlements take place on the basis of the discovery between the parties, and it can hardly be right that a party can selectively waive privilege at the time of serving his list of documents, on the basis that the loss of privilege is confined to the documents disclosed unless there is a trial and the documents are put in evidence. [126]

It may be added that in determining whether the privilege is to be treated as waived or not, regard should be had to the rationale for the privilege.

35. Client legal privilege - exceptions. The scope of the common law exception to client legal privilege where the communication was to further a fraudulent or criminal purpose was recently considered by the High Court. [127] Chief Justice Gibbs and Justices Dawson and Wilson took the view that the exception did not extend to include communications in furtherance of a breach of contract or the commission of a tort. A majority took the view, however, that the exception did apply where a communication was made to further an abuse of statutory power and by that abuse to prevent others exercising their rights under law. [128] It is unclear, however, whether the majority required a deliberate abuse of statutory power. Chief Justice Gibbs stated that the privilege must give way where there is a higher public interest and that it would be contrary to the public interest and the administration of justice to protect a communication made to further a deliberate abuse of statutory power with client legal privilege. The basis of the privilege was not endangered by the exceptions. Justice Wilson took the view that the public interest against disclosure was not normally outweighed save where the the professional relationship was abused in a manner involving dishonesty that goes to the heart of the matter. Thus a mistaken ultra vires act as a result of advice would not result in privilege being lost. [129] The majority approach appears to require a balancing of public interests. [130] The law was left in a state of uncertainty. [131]

36. Little assistance is found in earlier cases. Many different expressions may be found in the cases to explain what is meant by 'crime or fraud': 'any unlawful or wicked act'; [132] 'a criminal or unlawful proceeding', 'fraudulent contrivance, or ... any illegal proceeding', 'an improper or illegal act', 'illegality or fraud or trickery'; [133] 'crime or civil fraud', 'wrong doing', 'illegal object'; [134] 'any illegal or improper purpose', 'to frustrate the processes of law', 'taint of illegality'; [135] 'crime or fraud or civil offence'. [136]

37. Vice-Chancellor Turner in an early case [137] was disposed to think that 'the existence of the illegal purpose would prevent any privilege attaching to the communication'. He stressed that it cannot be regarded as part of the duty of a solicitor to advise his client as to the means of evading the law. This passage has been cited with approval frequently. [138] Similarly, the Earl of Halsbury [139] contemplated something beyond fraud when he held that 'no court can be called upon to protect communications which are in themselves parts of a criminal or unlawful proceeding'. [140] In the same case, however, Lord Shand and Lord Davy spoke of 'fraud or illegality'. [141] In contrast, in Crescent Farm (Sidcup) Sports Ltd v Sterling Offices[142] Justice Goff held that communications made between solicitor and client for the purpose of committing a breach of contract or furthering a conspiracy to commit a breach of contract did not cease to be privileged. Fraud was required. However, he was not prepared to limit the ambit of 'fraud' to the tort of deceit, preferring to include all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances.

38. Client legal privilege - inspection. The authorities in the past suggest that a document could not be inspected before the court ruled on whether the exception applied or not. In AG (NT) v Kearney the trial judge did inspect the documents and the High Court did not disapprove of this course. [143]

39. Without prejudice communications. The Court of Appeal in England [144] considered the situation of a letter making a without prejudice offer to settle a dispute which carried the rider that the author intended to use the letter on the question of costs if the dispute was not settled. The Court of Appeal held that such a letter could be used on the question of costs. It contained an offer to settle the case. The policy reasoning was in the main that there is no need to maintain the privilege once the case is decided. This does not necessarily follow. There may be material referred to which relates to issues not finally dealt with by the judgment. The Court of Appeal considered the basis of the without prejudice privilege. Reference was made to the public policy of encouraging settlements and to the 'implied agreement' basis. As to the former rationale, if evidence can be given at the conclusion of a case about without prejudice discussions, then it is likely that the policy objective will not be achieved, for free and frank discussion is required. The latter rationale, however, gave rise to the argument that the recipient of such a letter could write back and say that he did not agree to negotiate on that basis. To allow a 'without prejudice' offer to be used in this way means that the recipient cannot use what is said as an admission and thus improve his prospects of success and yet can have it used against him if he fails to recover more than is offered. In fairness, the writer of the letter should not be allowed to 'have it both ways'.

40. Discretion to exclude illegally obtained evidence. It is clearly established that a judge has a discretion in a criminal trial to exclude evidence illegally or improperly obtained. [145] There is little authority on whether that discretion is available in civil trials. In Pearce v Button[146] Justice Pincus held that there must be such a discretion in civil trials despite the lack of authority supporting its existence. In a subsequent case, Justice Jackson assumed the existence of the discretion without deciding the question. [147]

Aspects of proof

41. Evidence of the contents of documents. Amendments have been made in Victorian legislation which are intended to facilitate the use of reproductions of public documents. [148] The legislation in fact is made more difficult to use by requiring a search of Government Gazettes to find out which documents come within its provisions. Another amendment facilitates the proof of maps and plans etc. [149]

42. Judicial notice. In a South Australian case the prosecution failed because the prosecutor didnot tender the appropriate regulations in evidence. It was held that the magistrate could nottake judicial notice of their content and operation. [150] Legislation has been enacted in Victoria amending s 79 of the Evidence Act which specifies office holders in respect of whose signatures and seals the court is required to take judicial notice. [151] The scheme now in operation will require persons to check in the Government Gazette to establish whether the section applies to a particular office holder or not. While this means a simpler provision in the Act, it will make the provision difficult to use.

43. Corroboration - general. The inflexibility of the existing law was demonstrated in R v Spencer[152] where it was held that the categories in which it is obligatory to give a full Corroboration warning were closed and that as the evidence of a patient suffering from a mental illness was not within one of these categories, a full warning was not required. At the same time, there was some criticism in that case of the complexity and technicality of the full corroborative warning. [153] In Queensland only, a person cannot be convicted on the basis of an accomplice's evidence unless it is corroborated, [154] The Court of Criminal Appeal in Queensland recently urged the abolition of this rule. [155]

44. Corroboration - sexual assault and other cases. Legislation in some jurisdictions has removed the mandatory requirement in rape trials about the need for a warning in respect of the rape victim's evidence. [156] Judicial views differ about whether, if a judge decides to give a warning, he must do so in the manner laid down in the past. [157] It is also unclear whether each rape victim may corroborate the other where there is more than one. [158] The technicalities of the law continue. [159] An additional requirement has been suggested: the facts relied upon for corroboration must be proved beyond reasonable doubt. [160] The correctness of this requirement is doubted. [161] In Western Australia, the law has been amended to require the trial judge to give directions [162] to the jury where there is no evidence of a complaint by the victim of a sexual assault. The substance of the directions is set out in the legislation: the absence of a complaint does not necessarily indicate that the allegation that the offence was committed is false; there may be good reasons why a victim may hesitate or refrain from making a complaint. This is to be contrasted with the ACT approach where evidence of complaints is inadmissible. [163] In New South Wales, corroboration was required before a person could be convicted of certain offences against children on the unsworn evidence of a child. [164] By recent amendments, the law in New South Wales has been changed and the issue is dealt with by providing that the judge may warn the jury that it is unsafe to convict an accused on the uncorroborated evidence of a child but that the judge is not obliged to do so. [165]

Miscellaneous

45. The view. Uncertainty continues as to whether and in what circumstances the trial judge must be present at an inspection out of court. [166]

46. Waiver of rules and formalities. The Interim Report referred to the existence of some legislation and court rules permitting waiver of the rules of evidence - generally only in civil trials. In Victoria, a new provision has been enacted applicable in trials on indictment or presentments in the Supreme Court or County Court under which a judge may give directions with the consent of the accused, the prosecution and other interested persons relating to the waiver of rules and formalities. [167] If it is in the 'interests of justice', a judge may direct that:

a specified fact may be proved in a specified manner which is not in accordance with the rules of evidence;

specified fact is to be treated as admitted or established without proof;

specified exhibit is to be admitted in evidence without proof of its authenticity;

specified evidence may be read or a specified statement may be tendered without a witness being called.

This provision is not to be found elsewhere in Australia.

Footnotes

[1] ALRC 26, Evidence Interim Report, vol I Part III; vol II App C.

[2]R v Domonic (1985) 14 A Crim R 418; H (1983) 11 A Crim R 406; for a recent English decision see R v Bellamy [1986] Crim L Rev 54.

[3]R v Domonic, ibid, where a child of 11 years understood that he was obliged to tell the truth but did not understand the nature of the religious oath and was, therefore not competent; see H Gamble, Cases and Comment (1985) 9 Crim LJ 375.

[4] ALRC 26, vol II, App C, para 3.

[5] See s 418, 131 respectively.

[6] Oaths (Children) Amendment Act 1985 (NSW) s 33(1).

[7] ALRC 26, vol II, App C, para 9.

[8] Crimes (Child Assault) Amendment Act 1985 (NSW) Sch I, (5).

[9] Domestic Violence (Miscellaneous Amendments) Ordinance 1986 (ACT) s 4.

[10] For the existence of the discretion see Application of Forsyth [1984] 2 NSWLR 327.

[11] For: Application of Forsyth ibid; Seyfang v GD Searle & Co [1973] 1 QB 148 (Cooke J): especially where confidences would be breached and considerable preparation would be required (though no authorities were cited in support). Against: McKinley v McKinley [1960] 1 WLR 120 (Wrangham J).

[12] Evidence (Criminal Code) Amendment Act 1983 (NT) s 4.

[13] ALRC 26, vol I, 250, para 288.

[14]R v Brown (1983) 74 FLR 97.

[15] ALRC 26, vol II, App C, para 17.

[16] This brings Victorian law in line with that of NSW, NT and Norfolk Island.

[17] This is a ground available in SA, NT, WA, Queensland and Norfolk Island.

[18] Evidence (Amendment) Act 1984 (Vic) s 10.

[19] ALRC 26, vol I, para 26.

[20] Evidence Act Amendment Act 1985 (SA) s 3.

[21] Crimes (Amendment) Act 1986 (Vic).

[22] See above para 88(b)-(c), 90, 98-9 of this Report.

[23] Evidence (Amendment) Ordinance (No 2) 1985 (ACT) amending s 76 of Evidence Ordinance 1971 (ACT).

[24] (1984) 56 ALR 647, 679, 680 and 681.

[25] ALRC 26 vol II, App C, para 25.

[26] (1984) 56 ALR 647, 655, 657.

[27] ALRC 26, vol II, App C, para 55.

[28]R v Tilley [1985] VicRp 50; [1985] VR 505, 507.

[29] ALRC 26, vol II, App C, para 56.

[30]Jeppe v R (1985) 61 ALR 383, 390, 393 (WA Full Court).

[31]R v Murphy (1985-86) 63 ALR 53, 73 (C of CA NSW).

[32]Peet & Co Ltd v Rocci [1985] WAR 164, 176.

[33] See the cases cited below where the rule was ignored or avoided and see also the treatment of postmarks as evidence: R v Leroy (1984) 55 ALR 338.

[34]Gaggin v Moss [1984] 2 Qd R 513, 522.

[35]R v Blastland [1985] 3 WLR 345; criticised by Zuckerman AS, 'Evidence' [1985] All ER Annual Review, 155, 158.

[36]R v Splatt. unreported, Court of Appeal, SA (28 February 1979).

[37]R v McGregor [1984] 1 QdR 256, 266.

[38]R v Shore (1983) 76 Cr App R 72; R v Kelsey (1982) 74 Cr App R 213; R v Okorodu [1982] CrimL Rev 747; R v Muir [1984] Crim L Rev 101; cf R v Towers (1984-85) 75 FLR 77.

[39]R v Blastland [1985] 3 WLR 345.

[40] Evidence (Business Records) Interim Arrangements Act 1984 (NT).

[41]Ross McConnel Kitchen & Co Pty Ltd (In liq) [1985] 1 NSWLR 233.

[42] Family Law Amendment Act 1983 (Cth) s 28.

[43] ALRC 26, vol I, para 221.

[44]Supetina Pty Ltd v Lombok Pty Ltd [1984] FCA 376; (1984) 59 ALR 581.

[45] [1969] HCA 73; (1968) 42 ALJR 33.

[46] (1984) 56 ALR 647, 707, 708.

[47] Broadly, evidence of statements connected with the transaction in question.

[48] ALRC 26, vol II, App C, para 82.

[49] See Vocisano v Vocisano (I 974) 48 AU R 157; Ratten v R [ [1971] UKPC 23; 1972] AC 378, 391.

[50] eg R v Turnbull [1984] Crim L Rev 620: statement about the identity of the attacker made after staggering 100 yards into a bar and later in ambulance admitted as part of the res gestae.

[51] See, for example R v Van den Hoek (1983) 17 A Crim R 191; Burt CJ relied on the Ratten test, Kennedy J did not.

[52] Evidence (Amendment) Ordinance (No 2) 1985 (ACT) enacting new s 76C(1).

[53] JA Gobbo, D Byrne & JD Heydon, Cross on Evidence, 2nd Aust edn, Butterworths, Sydney, 1979, para 10.26ff.

[54] cf approach taken in Western Australia: see below, para 44.

[55] The proposals on hearsay and opinion evidence, judicial notice and facilitation of proof would significantly improve the situation.

[56] ALRC 26, vol II, para 107.

[57]Paric v John Holland (Constructions) Pty Ltd (I 985) [1985] HCA 58; 59 ALJR 844, 846.

[58] (1984) 56 A 647, 707.

[59] eg R v Skirving [1985] 2 All ER 705: evidence of opinion about tendency of cocaine to corrupt, admissible; evidence of opinion about whether a book about cocaine has a tendency to corrupt, inadmissible. cf Thiess Properties Ply Lid v Ipswich Hospital Board (No 2) [1985] 2 Qd R 323; R v Fowler (1985) 39 SASR 440. For general criticisms see JD Jackson, 'The Ultimate Issue Rule' [1984] Crim L Rev 75.

[60] The Frye Test is a test that has been used in the United States requiring that the expert opinion be about matters within a recognised area of expertise and that the opinion be based on principles accepted in that field of expertise: ALRC 26, vol II, App C, para 103-4.

[61] (1984) 38 SASR 45, 47 (King CJ (Matheson, Bollen JJ concurring)) citing R v Gilmore [1977] 2 NSWLR 935; US v Williams [1978] USCA2 671; 583 F 2d 1194 (1978); R v McHardie [1983] 2 NSWLR 733.

[62] ALRC 26, vol I, para 355-8,745.

[63] ALRC 26, vol II, App C, para 42.

[64] See ALRC 26, vol II, App C, para 206.

[65] [1985] HCA 30; (1985) 59 ALJR 477.

[66] Not admissible: Stahl Aviation v Electrum Finance Pty Ltd (1984) 56 ALR 716; admissible: TPC v TNT (1984) 56 ALR 647, 63.

[67] Not admissible: R v McBride (1983) 34 SASR 433; R v Martin (1983) 32 SASR 419, 439-45; and see R v Rowson [1985) Crim L Rev 307; assumed to be admissible Cross on Evidence, para 18.117; R v Attard [1970] 91 WN (NSW) 824.

[68]Gaggin v Mass [1984] 2 Qd R 513.

[69]R v King [1984] 12 A Crim R 107, 109.

[70] cf R v McMillan & Ors [1984] 13 A Crim R 234: The judgment is open to the interpretation that the voluntariness rule does not apply to exculpatory statements (243-5); also R v Larson and Lee [1984] VicRp 45; [1984] VR 559 (although the confession was excluded in the exercise of judicial discretion); R v Kelcey [1985] VicRp 73; [1985] VR 765. In R v Crawford [1985] 2 Qd R 22 the test used was whether the witness was overborne, not whether the admission was voluntary.

[71] eg, Victorian Bar Council and Australian Institute of Judicial Administration Inc, Shorter Trials Committee, Report on Criminal Trials, AIJA Inc, Canberra 1985, para 19; Committee on Police Powers of Investigation (Vic) Report on s 460 of the Crimes Act 1958, Vic Govt Printer, Melbourne 1986, para 6.17; Criminal Law Revision Division, Department of the Attorney-General (NSW) Report on the use of Electronic Equipment to Record Police Interviews, NSW Govt Printer, Sydney, 1984, para 7.22.

[72] [1982] HCA 67; (1982) 43 ALR 619.

[73] ALRC 26, vol II, App C para 147.

[74] Unreported, High Court (26 August 1986).

[75] ALRC 26, vol II, para 151ff.

[76] [1943] KB 587.

[77]Mickelberg v Director of Perth Mint [1985] ACLD 625.

[78] ALRC 26, vol II, App C, para 162ff.

[79] F Neasey, 'Similar Fact Evidence and Propensity Rules' (1985) 9 Crim LJ 232; TR Allan, 'Similar Fact Evidence & Disposition' (1985) 48 Mod LR 253; PB Carter, 'Forbidden Reasoning Permissible' (1985) 48 Mod LR 29; P Gillies, 'Propensity Evidence' 1986 2 Australian Bar Review 55.

[80]Jeppe v R (1985) 61 ALR 383, 394; R v MacKay [1985] VicRp 63; [1985] VR 623; R v Mills [1986] 1 Qd R 77; R v Matthews (1984) 15 A Crim R 1; R v Von Einem (1985) 38 SASR 207.

[81] ALRC 26, vol II, App C, para 170ff.

[82] [1984] HCA 5; (1984) 58 ALJR 60.

[83] Professor Starke, Recent Cases, (1984) 58 ALJ728.

[84] ALRC 26, vol II, App C, para 173ff.

[85]Boyce v Carfred Pty Limited [1985] ATPR para 40-527.

[86] The issue was left open in Peet & Co Ltd v Rocci [1985] WAR 164,174.

[87] As to cross-examination of witnesses, the power of the court to control cross-examination going to credibility remains unclear: eg Alister v R [1984] HCA 85; [1984] 58 ALJR 97, 100, 102 and 121.

[88] ALRC 26, vol II, App C, para 186ff.

[89] id, para 187.

[90]Phillips v R [1985] HCA 79; (1985) 62 ALR 479.

[91] idid.

[92] id, 486.

[93] id, 485.

[94] id, 487.

[95] [1960] VicRp 62; [1960] VR 382, 398.

[96] The legislation requires that 'the nature or conduct of the defence' was 'such as to involve imputations on the character' or any witness from the prosecution. The suggestion that the record of interview with the accused was falsely assembled by the police can bring the legislation into play; R v Devine (1985) 18 A Crim R 185.

[97] [1985] HCA 79; (1985) 62 ALR 479.

[98] Other criticisms of the majority view are to be found in the dissenting judgment of Deane J.

[99] ALRC 26, vol II, App C, 166ff.

[100]R v Murphy (I 985) 63 ALR 53.

[101] eg R v Powell [1986] 1 All ER 193; Phillips v R [1985] HCA 79; (1985) 62 ALR 479. See also ALRC 26, vol I, para 795, 799; see also R Munday, 'Stepping beyond the bounds of Credibility' [1986] Crim L Rev 511.

[102] Evidence (Amendment) Ordinance (No 2) 1985 (ACT).

[103] Evidence Ordinance 1971 (ACT) s 76G.

[104] Acts Amendment (Sexual Assaults) Act 1985 (WA) s 15.

[105]R v Turnbull [1976] 3 All ER 549.

[106] ALRC 26, vol II, para 24.

[107]R v De-Cressac [1985] 1 NSWLR 381; R v Allen (1984) 16 A Crim R 441. R v Turnbull [1976] 3 All ER 549 also laid down that the judge should direct an acquittal where the identification evidence is poor unless there is other evidence which supports the identification. This has been accepted only in Tasmania and Western Australia: ALRC 26, vol II, App C, para196.

[108] See also R v Haidley & Orford [1984] VicRp 18; [1984] VR 229, 231, where the directions given were those laid down in Victorian authorities but it was not held to be necessary to warn the jury that they may overestimate the value of the evidence; see also R v King (1984) 12 A Crim R 107. For a discussion of danger areas, see ALRC 26, vol I, para 426. See also JD Jackson, 'The Insufficiency of Identification Evidence based on Personal Impression' [1986] Crim L Rep 203.

[109] (1985) 18 A Crim R 191 (CCA Queensland).

[110] Evidence (Amendment) Act 1984 (Vic).

[111] Evidence (Amendment) Act 1985 (Vic) s 5.

[112] [1985] HCA 60; (1985) 59 ALJR 749.

[113] (1984) 55 ALR 242.

[114] id, 259 (Shepperdson J).

[115] ALRC 26, vol I, para 612; vol II, App C, para 273: cf application of sole purpose test in Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd [1985] 3 NSWLR 44.

[116] [1984] 2 NSWLR 652.

[117] [1976] HCA 63; (1976) 135 CLR 674 - the purpose that accounts for its existence.

[118] [1984] 2 NSWLR 652, 655-6.

[119] [1984] 1 NSWLR 66.

[120] [1984] 2 NSWLR 652, 659-61.

[121] [1985] 3 NSWLR 44, 612.

[122] (1984) 56 ALR 647.

[123]Pamplin v Express Newspapers Ltd [1985] 1 WLR 689.

[124]General Accident Assurance v Tanter [1984] 1 All ER 35; AG (NT) v Maurice [1986] FCA 91; (1986) 65 ALR 230, 233.

[125]AG (NT) v Maurice, id, 242.

[126]Phipson on Evidence, 1st supplement to l3th ed, para 15-20.

[127]Attorney-General (Northern Territory) v Kearney [1985] HCA 60; (1985) 59 ALJR 749.

[128] id, 754 (Gibbs CJ); 755 (Mason, Brennan JJ).

[129] Woodward and Neaves JJ took a different view in the Full Court of the Federal Court: AttorneyGeneral (Northern Territory) v Kearney [1948] ArgusLawRp 48; (1984) 55 ALR 545.

[130] cf case note 60 ALJ 101.

[131] The following issues were also left unresolved: whether communications made for the purpose of committing a tort constitute an exception to legal professional privilege; the extent of the interpretation of 'fraud' and, in particular, whether it will be confined to the tort of deceit; the significance of the intentional element, the importance of deliberately unlawful conduct, has yet to be explored, In addition, Gibbs CJ said that the privilege should not be used to 'further an illegal purpose': [1985] HCA 60; (1985) 59 ALJR 749, 754. It is not clear, however, what is meant by 'illegal'. Generally, an act is illegal when it is one which the law directly forbids: see J Burke (ed) Jowitt's Dictionary of English Law, 2nd edn, Sweet and Maxwell Ltd, London, 1977, 937. However, it may be that his Honour intended to refer to any activity which was 'unlawful'. It is probable that such 'unlawful' communications would only constitute an exception to legal professional privilege, if, as held by Wilson J, they were deliberately pursued for a purpose which was known to be 'unlawful'.

[132]Annesley v Anglesea (1743) 17 St Tr 1139, 1229.

[133]Bullivant v Attorney-General for Victoria [1901] UKLawRpAC 15; [1901] AC 196, 201, 203, 205, 206.

[134]Varawa v Howard Smith & Co Ltd [1910] HCA 11; (1910) 10 CLR 382, 386, 387, 390.

[135]R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141, 145, 156, 162.

[136]Baker v Campbell (1983) 153 CLR 52, 86.

[137]Russell v Jackson [1851] EngR 955; (1851) 9 Hare 387, 392-3; [1851] EngR 955; 68 ER 558, 560.

[138] See eg Varawa v Howard Smith & Co Ltd [1910] HCA 11; (1910) 10 CLR 382, 389; R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141, 152.

[139]Bullivant v Attorney-General for Victoria [1901] UKLawRpAC 15; [1901] AC 196, 201.

[140] Emphasis added.

[141] id, 203, 204-5.

[142] [1972] Ch 553.

[143] See especially (1985) 59 ALJR 753, 756 (Wilson J).

[144]Cutts v Head [1983] EWCA Civ 8; [1984] 2 WLR 349.

[145] ALRC 26, vol II, App C, para 260ff.

[146] (1985) 60 ALR 537, 551.

[147]ONeil v Wratten (1986) 65 ALR 451, 457.

[148] Evidence (Amendment) Act 1984 (Vic) s 7 enacting new s 53A.

[149] Evidence (Amendment) Act 1985 (Cth) s 8 enacting new s 67.

[150]Reynolds v Bogan Holdings Pty Limited (1984) 36 SASR 193.

[151] Evidence (Amendments) Act 1984 (Vic).

[152] [1985] 1 All ER 673; see also Bromley v R [1986] HCA 49; (1986) 67 ALR 12, 15, 18.

[153] [1985] 1 All ER 673, 682-3 (May LJ). See also the difficulties with the accomplices category (R v Turnbull and anor [1985] 17 A Crim L Rev 370) and the use of alleged lies of accused (R v Evans (1985) 16 A Crim R 281) as corroboration and the proper form of warning.

[154] Criminal Code (Qld) s 632.

[155]R v Turnbull and anor [1985] 17 A Crim L Rev370.

[156] ALRC 26, vol II, App C, para 302. See also Evidence (Amendment) Ordinance (No 2) 1985 (ACT) s 4 enacting new s 76F; Acts Amendment (Sexual Assaults) Act 1985 (WA) s 15, enacting new s 36BE.

[157]R v Kehagias [1985] VicRp 10; [1985] VR 107; R v Rosemeyer [1985] VicRp 90; [1985] VR 945.

[158] cf DPP v Hester [1973] AC296; R Kehagias, ibid, where DPP v Hester was distinguished but cf R v Rosemeyer, id, 952 (Murray J).

[159] ALRC 26, vol II, App C, 298: vol I, para 488. R v R [1985] Crim L Rev 736; R v Spencer [1985] Crim L Rev 101; R v Schlaefer (1985) 37 SASR 207; R v Pitman (1985) 38 SASR 566; C v Waye (1984) 15 A Crim R 349; R v Roissetter [1984] 1 Qd R 477; FJ Thorp, 'Cumulative Corroboration' [1984] Crim L Rev 142; D Oughten, 'Distressing Nature of Corroboration' [1984] Crim L Rev 265; I Dennis, 'Corroboration Requirements Reconsidered' [1984] Crim L Rev 316; C Yates, 'Accomplice Evidence' [1984] Crim L Rev 213; PB Carter, 'Corroboration Requirements Reconsidered' [1985] Crim L Rev 143.

[160]R v Evans (1985) 38 SASR 344.

[161] Sir Richard Eggleston, 'The Mathematics of Corroboration' [1985] Crim L Rev 640; R v Hester [1973] AC 296, 315; R v Kilbourne [1973] AC 729, 766.

[162] Acts Amendment (Sexual Assaults) Act 1985 (WA) s15, enacting new s 36BD.

[163] above para 15.

[164] ALRC 26, vol II, App C, para 304.

[165] Evidence (Children) Amendment Act 1985 (NSW) s 3.

[166]R v Hunter [1985] 2 All ER 173 (CA).

[167] Evidence (Amendment) Act 1985 (Vic) s 11.

[Return to Top]

Table of Cases

Alister v R [1984] HCA 85; (1984) 58 ALJR 97	App C 25
Annesley v Anglesea (1743) 17 St Tr 1139	App C 36
Application of Forsyth; Re Cordova v Philips Roxane Laboratories Inc, [1984] 2 NSWLR 327	App C 4
Attorney-General (Northern Territory) v Kearney [1985] HCA 60; (1985) 59 ALJR 749	App C 31, 34, 35,38, 196, 198
Baker v Campbell (1983) 153 CLR 52	App C 36
Boston v WS Bagshaw & Sons [1966] 1 WLR 1135	219
Boyce v Carfred Pty Ltd (1985) ATPR 46, 253	App C 24
Brenan v Russell (1862 ) 1 SCR (NSW) 300	219
Bromley v R [1986] HCA 49; (1986) 67 ALR 12	App C 43
Browne v Dunn (1894) 6 R 67	115
Bullivant v Attorney-General for Victoria [1901] UKLawRpAC 15; [1901] AC 196	App C 36, 37
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54	161
C v Waye (1984) 15 A Crim R 349	App C 44
Clamp v Lyne (1895) 11 WN (NSW) 108	219
Clark v United States [1933] USSC 52; 289 US 1, 15 (1933)	198
Cleland v R [1982] HCA 67; (1982) 43 ALR 619	App C 21
Constantinou v Frederick Hotels Ltd [1966] 1 WLR 75	139
Crescent Farm (Sidcup) Sports Ltd v Sterling Offices [1972] Ch 553	App C 37
Cutts v Head [1983] EWCA Civ 8; [1984] 2 WLR 349	App C 39
DPP v Hester [1973] AC 296	App C 44
Ellis v Deneer [1922] 2 KB 113	219
Ferguson v Union Steamship Company of New Zealand Ltd [1969] HCA 73; (1968) 42 ALJR 33	App C 13
Foster v Hawden [1793] EngR 898; 83 ER 520	219
Frye v United States 293 F 1013 (1932)	148
Gaggin v Moss [1984] 2 Qd R 513	App C 10, 20
General Accident Fire and Life Assurance Corp Ltd v Tanter [1984] 1 All ER 35	App C 34
Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VicRp 80; [1981] VR 856	29
H (1983) 11 A Crim R 406	App C 3
Hollington v Hewthorn [1943] KB 587	53, App C 22
Jeppe v R (1985) 61 ALR 383	App C 10, 23
Jones v Godrich (1845) 4 Moo PCC 16	196
May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654	71
McCaskill v Mirror Newspapers Ltd [1984] 1 NSWLR 66	App C 32
McKinley v McKinley [1960] 1 WLR 120	App C 4
Mickelberg v Director of Perth Mint [1985] ACLD 625	App C 22
Mobil Oil Corporation v Registrar of Trade Marks [1984] VicRp 3; [1984] VR 25	23
Nickmar Pty Ltd Preservatrice Skandia Insurance Ltd [1985] 3 NSWLR 44	App C 32
O'Neil v Wratten (1986) 65 ALR 451	App C 40
Packer v Deputy Commissioner of Taxation (Qld) (1984) 55 ALR 242	App C 32
Pamplin v Express Newspapers Ltd [1985] 1 WLR 689	App C 33
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844	145, App C 17
Pearce v Button (1985) 60 ALR 537	App C 39
Peet & Co Ltd v Rocci [1985] WAR 164	App C 10, 23, 24
Phillips [1985] HCA 79; (1968) 60 ALJR 76	180
Phillips v R [1985] HCA 79; (1985) 62 ALR 479	App C 25, 27
Price v R [1981] TASRp 23; [1981] Tas R 306	144
R v Allen [1984] 16 A Crim R 441	App C 29
R v Apostilides (1984) 58 AUR 371	114
R v Attard (1970) 91 WN (NSW) 824	App C 19
R v Ball [1910] UKLawRpAC 59; [1911] AC 47	176
R v Barton [1972] 2 All ER 1192	196
R v Bathurst [1968] 2 QB 99	71, 144
R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141	App C 36, 37
R v Bellamy [1986] Crim L Rev 54	App C 3
R v Blastland [1985] 3 WLR 345	App C 10
R v Bodsworth [1968] 2 NSWR 132	162
R v Bonython (1984) 38 SASR 45	App C 19
R v Brown [1907] NSWStRp 27; (1907) 7 SR (NSW) 290	219
R v Brown (1983) 74 FLR 97	App C 4
R v Brown [1960] VicRp 62; [1960] VR 382	App C 25
R v Corack (1982) 30 ASR 404	123
R v Cornelius (1936) 55 CLR 235	162
R v Crawford (1985) 2 Qd R 22	App C 20
R v Davison [1972] 3 All ER 1121	71
R v De-Cressac [1985] 1 NSWLR 381	App C 29
R v Devine [1985] 18 A Crim R 185	App C 26
R v Domonic [1985] 14 A Crim R 418	App C 3
R v Drury (1983) 50 ALR. 159	21
R v Evans (1985) 16 A Crim R 281	App C 43
R v Evans (1985) 38 SASR 344	App C 44
R v Fowler (1985) 39 SASR 440	App C 17
R v Gilmore [1977] 2 NSWLR 935	App C 19
R v Haidley & Orford [1984] VicRp 18; [1984] VR 229	App C 29
R v Hester [1973] AC 296	App C 44
R v Hunter [1985] 2 All ER 173	App C 45
R v Kehagias [1985] VicRp 10; [1985] VR 107	App C 44
R v Kelcey [1985] VicRp 73; [1985] VR 765	App C 20
R v Kelsey (1982) 74 Cr App R 213	App C 10
R v Kern (1985) 18 A Crim R 191	App C 29
R v Kilbourne [1973] AC 729	App C 44
R v King (1984) 12 A Crim R 107	App C 20, 29
R v Larson and Lee [1984] VicRp 45; [1984] VR 559	App C 20
R v Lee [1950] HCA 25; (1950) 82 CLR 133	159
R v Leroy (1984) 55 ALR. 338	App C 10
R v Lucas [1973] VicRp 68; [1973] VR 693	40
R v MacKay [1985] VicRp 63; [1985] VR 623	App C 23
R v Martin (1983) 32 SASR 419	App C 19
R v Matthews (1984) 15 A Crim R 1	App C 23
R v McBride (1983) 34 SASR 433	App C 19
R v McGregor [1984] 1 Qd R 256	App C 10
R v McHardie [1983] 2 NSWLR 733	App C 19
R v McMillan & Ors (1984) 13 A Crim R 234	App C 20
R v Mills [1986] 1 Qd R 77	App C 23
R v Muir (1984) Crim L Rev 101	App C 10
R v Murphy (1985) 63 ALR 53	App C 10, 26
R v Mutch [1973] 1 All ER 178	71
R v Okorodu [1982] Crim L Rev 747	App C 10
R v Pipe (1967) 51 Cr App R 17	75
R v Pitman (1985) 38 SASR 566	App C 44
R v Powell [1986] 1 All ER 193	App C 27
R v Power [1940] St R Qd I I I	71
R v R [1985] Crim L Rev 736	App C 44
R v Roissetter [1984] 1 Qd R 477	App C 44
R v Rosemeyer [1985] VicRp 90; [1985] VR 945	App C 44
R v Rowson [1985] Crim L Rev 307	App C 19
R v Schlaefer (1985) 37 SASR 207	App C 44
R v Shore (1983) 76 Cr App R 72	App C 10
R v Skirving [1985] 2 All ER 705	App C 17
R v Sparrow [1973] 2 All ER 129	71
R v Spencer [1985] 1 All ER 673	App C 43
R v Spencer [1985] Crim L Rev 101	App C 44
R v Splatt, unreported, Court of Criminal Appeal, Supreme Court of SA (28 February 1979)	App C 10
R v Stephenson [1976] VicRp 34; [1976] VR 376	122
R v Thompson [1962] SR (NSW) 135	162
R v Tilley [1985] VicRp 50; [1985] VR 505	23, App C 9
R v Towers (1984-85) 75 FLR 77	App C 10
R v Turnbull [1976] 3 All ER 549	App C 29
R v Turnbull [1984] Crim L Rev 620	App C 14
R v Turnbull and anor (1985) 17 A Crim R 370	App C 43, 44
R v Turner (1975) 61 Cr App R 67	75
R v Van Beelen (1974) 9 SASR 163	139
R v Van den Hoek (1983) 17 A Crim R 191	App C 14
R v Von Einern (1985) 38 SASR 207	App C 23
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228	29
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642	145
Ratten v R [1971] UKPC 23; [1972] AC 378	App C 14
Re Matthews and Ford [1973] VicRp 18; [1973] VR 199	219
Re Ratten [1974] VicRp 26; [1974] VR 201	28, 39, 40
Reynolds v Hogan Holdings Pty Ltd (1984) 36 SASR 193	App C 42
Ross McConnel Kitchen & Co Pty Ltd (In Liq) [1985] 1 NSWLR 233	App C 10
Russell v Jackson [1851] EngR 955; (1851) 9 Hare 387	App C 37, 196
Rutherford v Richardson [1923] AC 1	34
Seyfang v GD Searle & Co [1973] 1 QB 148	App C 4
Straker v Graham (1839) 4 Mr W 721	219
Stephens v R (1985) 59 AUR 477	App C 19
Stohl Aviation v Electrum Finance Pty Ltd (1984) 56 ALR 716	App C 19
Supetina Pty Ltd v Lombok Pty Ltd [1984] FCA 376; (1984-85) 59 ALR 581	App C 13
Sutton v R [1984] HCA 5; (1984) 58 ALJR 60	App C 23
The Commissioner of Police v Tanos [1958] HCA 6; (1957-58) 98 CLR 383	34
Thiess Properties Pty Ltd v Ipswich Hospitals Board (No 2) (1985) 2 Qd R 323	App C 17
Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647	App C 7, 13, 17,19, 33
Tripodi v R [1961] HCA 22; (1961) 104 CLR 1	123
Tuckiar v R [1934] HCA 49; (1934) 52 CLR 335	71
US v Williams [1978] USCA2 671; 583 F2d 1194 (1978)	App C 19
Vaise v Delavil [1785] EngR 12; (1785) 99 ER 944	219
Varawa v Howard Smith & Co Ltd [1910] HCA 11; (1910) 10 CLR 382	App C 36, 37, 197
Vardas v South British Insurance Co Ltd [1984] 2 NSWLR 652	App C 32
Vocisano v Vocisano (1974) 48 ALJR 157	App C 14
Walker v Walker [1937] HCA 44; (1937) 57 CLR 630	111
Waugh v R [1950] AC 203	71, 73

[Return to Top]

Table of legislation

Acts Amendment (Sexual Assaults) Act 1985 (WA) s 15	App C 28, App C 44
Acts Interpretation Act 1901 (Cth)
s 25	61
s 26(6)	55, 56
Australian Constitution
s 116	209
s 122	56
Civil Evidence Act 1968 (UK)	Summary 12
Combines Investigation Act (Can) s 45	15
Courts Martial Act 1985 (Cth)	56
Crimes Act 1914 (Cth)
s 24(d)(ii)	3240>55
s 36A	219
s 37	219
s 38	219
s 39	219
s 42	219
s 43	219
s 44	219
Pt III	218, 219
Crimes Act 1900 (NSW)
s 410	3240>162
s 413B	178
Crimes (Amendment) Act 1986 (Vic)	88, App C 6
Crimes (Child Assault) Amendment Act 1985 (NSW) Schedule 1, (5)	App C 3
Criminal Code (NT) s 360	88
Criminal Code (Qld) s 632	App C 43
Criminal Law Amendment Act 1984 (Qld) s 10	162
Customs Act 1901 (Cth)	221
Defence Force Discipline Act 1982 (Cth)	170
Diplomatic Privileges and Immunities Act 1967 (Cth)
s 7(1)	67
Schedule, Art 31 para 2	67
Domestic Violence (Miscellaneous Amendments)
Ordinance 1986 (ACT) s 4	App C 3
Evidence Act 1905 (Cth)	1, 52, 55, 235
Pt IIIA	29
Evidence Act (Amendment) Act 1985 (SA) s 3	88, App C 6
Evidence Amendment Act 1985 (Cth) s 8	App C 41
Evidence (Amendment) Act 1984 (Vic)	App C 30, 42
s 10	App C 5
s 53A	App C 41
Evidence (Amendment) Act 1985 (Vic)
s 5	App C 30
s 11	App C 46
Evidence (Amendment) Ordinance (No 2) 1985 (ACT)	App C 6, 15, 28
Evidence (Business Records) Interim Arrangements Act 1984 (NT)	App C 12
Evidence (Children) Amendment Act 1985 (NSW) s 3	App C 44
Family Law Act 1975 (Cth) s 62(5)	3240>55
Family Law Amendment Act 1983 (Cth) s 28	App C 12
Family Law Regulations (Cth) reg 63(12)	55
Federal Court Rules (Cth)
O 14 r 8	55
O 33 r 2	55
High Court Rules (Cth)
O 39 r 3	55
O 39 r 14	55
O 39 r 17	55
Judiciary Act 1903 (Cth)
s 79	Summary 3; 5, 20, 55, 248
s 80	Summary 3; 5, 20, 55
s 80A	5, 20, 55
Judiciary Amendment Act 1976 (Cth)	3, 6
Juridiction of Courts (Cross-vesting) Bill 1986 s 11(1)(b)	21
Marriage Act 1961 (Cth) s 94(7)	3240>55
Norfolk Island Act 1980 (Cth)	56
Northern Territory (Self-Government) Act 1978 (Cth)	56
Oaths Act 1900 (NSW)	App C 3
Oaths (Children) Amendment Act 1985 (NSW) s 33(1)	App C 3
Patents Act 1952 (Cth) s 101	55
State and Territorial Laws & Records Recognition Act 1901 (Cth)	1, 55, 233, 235
Trade Practices Act 1974 (Cth)	221
s 74	55

[Return to Top]

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[Return to Top]

Index

This index is an index both to the Interim Report (ALRC 26) and this report. References to the Interim Report are prefixed by 'ALRC 26'. References to this Report are prefixed by 'ALRC 38'.

Admissibility,

procedure for determining, see 'Voir dire'

rules of, see particular topics

structure of rules of ALRC 38: 119-121

Admissions, see 'Voir dire'

adoption, by

inconsistencies, uncertainties and other criticisms ALRC 26: 135, App C 115, 117; ALRC 38: App C 19

proposals ALRC 26; 755, 769: ALRC 38: 154(c), 155, 164(b)

characteristics of accused

inconsistencies and uncertainties ALRC 26: 144, App C 132-5, 139-40, 143

proposals ALRC 26: 764-6; ALRC 38: 154(d)

circumstances in which made ALRC 38: 154(d), 155-64

civil trials, in

inconsistencies and uncertainties ALRC 26: 154, App C 149

proposals ALRC 26: 752-55; ALRC 38: 152-3, 154(a), (b), 155

co-conspirators

inconsistencies and uncertainties ALRC 26: App C 123

proposals ALRC 26: 755; ALRC 38: 152(c), 155

consciousness of guilt

criticisms ALRC 26: 367-8

inconsistencies and uncertainties ALRC 26: App C 114

proposals ALRC 26: 756-8; ALRC 38: 165-9

consequentially discovered evidence, see 'Discretions,

illegally or improperly obtained evidence'

inconsistencies and uncertainties ALRC 26: 145, App C 141, 150

proposals ALRC 26: 765, 966

co-party, by

inconsistencies and uncertainties ALRC 26: App C 150

proposals ALRC 26: 755; ALRC 38: 152(d), 155

criminal trials, in

criticisms ALRC 26: 367-5

inconsistencies and uncertainties ALRC 26: 138-53, App C 112-48, 150

proposals ALRC 26: 756-70; ALRC 38: 154-69

definition of

inconsistencies and uncertainties ALRC 26: 135, ALRC 26: App C 112

proposals ALRC 26: 752, 755; ALRC 38: 152

discretions to exclude, see 'Discretions' ALRC 26: App C 150

evidence of

abuses in obtaining ALRC 26: 381

reliability of

criticisms ALRC 26: 380-1

proposals ALRC 26: 767-8; ALRC 38: 154-164

time and cost ALRC 26: 381; ALRC 38: 163, App C 20

where contest ALRC 26: 381

illegally or improperly obtained, see 'Discretions,

illegally or improperly obtained'

inconsistencies and uncertainties ALRC 26: 149, App C 144

proposals ALRC 26: 965-6; ALRC 38: 154-64

inducements

inconsistencies and uncertainties ALRC 26: 141-3, App C 131

proposals ALRC 26: 764-6; ALRC 38: 156, 162

law and fact

inconsistencies and uncertainties ALRC 26: 137, App C 126

proposals ALRC 26: 755; ALRC 38: 152-3

legislation, inconsistencies and uncertainties ALRC 26: 146, 7, App C 136-40, 150

mental state of accused

inconsistencies and uncertainties ALRC 26: App C 133; ALRC 38: 156

proposals ALRC 26: 764-6; ALRC 38: 154(d) 62

non-police questioning

criticisms ALRC 26: 369

inconsistencies and uncertainties ALRC 26: App C 131

proposals ALRC 26: 753-5: ALRC 38: 152-4(b)

personal knowledge

inconsistencies and uncertainties ALRC 26: 136, App C 125

proposals ALRC 26: 755; ALRC 38: 152

probative value/prejudice discretion, see

'Discretions, probative value/prejudice'

proposals for

admissions obtained by violence, etc ALRC 26: 766; ALRC 38: 154(a), 155

adoption of reading of confession ALRC 26: 769; ALRC 38: 154(c), 155, 164(b)

operation of ALRC 26: 770; ALRC 38: 152

rationale for ALRC 26: 753-4, 761; ALRC 38: 160

reliability of evidence of admission ALRC 26: 767-8; ALRC 38: 154(c), 163

truth of admissions ALRC 26: 762-6; ALRC 38: 158-64

'read back' ALRC 38: 163

recording of ALRC 38: 163

Report on Criminal Investigation ALRC 26: 760, 765, 768; ALRC 38: 163(b)

representative capacity

inconsistencies, uncertainties and other criticisms ALRC 26: 365, App C 113

proposals ALRC 26: 755; ALRC 38: 152(a), 153

right to silence and

inconsistencies, uncertainties and other criticisms ALRC 26: 370, App C 118

proposals ALRC 26: 755, 758; ALRC 38: 160-1, 165-9

self-serving

inconsistencies and uncertainties ALRC 26: App C 127

proposals ALRC 26: 755; ALRC 38: 152(b), 153

silence as

inconsistencies, uncertainties and other criticisms ALRC 26: 135, 367-70, App C 118-20

proposals ALRC 26: 755-8; ALRC 38: 165-9

third party, by

inconsistencies, uncertainties and other criticisms ALRC 26: 135, 366, App C 121-4; ALRC 38: App C 20

proposals ALRC 26: 755; ALRC 38: 152(c), 153

threats and promises ALRC 26: 141-3, 764-6, App C 131; ALRC 38: 162

unfairly obtained, see 'Discretions, admission unfairly obtained'

untrue representations ALRC 38: 162

vicarious

inconsistencies, uncertainties and other criticisms ALRC 26: 135, 366, App C 121-4

proposals ALRC 26: 755; ALRC 38: 152(c), 153

voluntariness rule

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 140-7, 371-9, 764, App C 128-30; ALRC 38: 156, App C 20

proposals ALRC 26: 759-66; ALRC 38: 154-64

causal basis ALRC 26: 376; ALRC 38: 156

failure to exclude admissions ALRC 26: 378; ALRC 38: 156

inducements

inconsistencies, uncertainties and other criticisms ALRC 26: 141, 377, App C 131, 136-40; ALRC 38: 156

psychological research and ALRC 26: 375

rationale for ALRC 26: 761; ALRC 38: 160

replacement of, see 'proposals', this heading

voluntariness, meaning of ALRC 26: 140, 371-4; App C 130; ALRC 38: 156

Affidavits

authentication & identification

inconsistencies and uncertainties ALRC 26: App C 276

proposals ALRC 26: 991; ALRC 38: 233, 241

hearsay

inconsistencies and uncertainties ALRC 26: App C 94

proposals ALRC 26: 713; ALRC 38: 241

secondary evidence of documents

inconsistencies and uncertainties ALRC 26: App C 65-70

proposals ALRC 26: 659; ALRC 38: 230, 241

Affirmation, see 'Oath' and 'Unsworn evidence'

form of

inconsistencies and uncertainties ALRC 26: App C 17

proposals ALRC 26: 575, 579, 582; ALRC 38: 85-6

perjury warning, absence of

inconsistencies, uncertainties and other criticisms ALRC 26: 269, App C 17

proposals ALRC 26: 574, 576

reasons for making

inconsistencies, uncertainties and other criticisms ALRC 26: 268, App C 17

proposals ALRC 26: 571-3; ALRC 38: 85-6

right to make

inconsistencies, uncertainties and other criticisms ALRC 26: 267, App C 17;

ALRC 38: 85-6; App C 5

proposals ALRC 26: 571-4; ALRC 38: 85-6;

Authentication and identification

affidavit

inconsistencies and uncertainties ALRC 26: App C 276

proposals ALRC 26: 991; ALRC 38: 233, 241

business records

inconsistencies, uncertainties and other criticisms ALRC 26: 182, 499, App C 278, 282

proposals ALRC 26: 517-8, 989; ALRC 38: 232(c)

common law

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 178-80, 491-7, App C 277-80

proposals ALRC 26: 979-92; ALRC 36: 233-5

exclusionary rule

inconsistencies, uncertainties and other criticisms ALRC 26: 495-6, App C 277-8

proposals ALRC 26: 982-4; ALRC 38: 233-5

standard of proof

inconsistencies, uncertainties and other criticisms ALRC 26: 180, 497, App C 279

proposals ALRC 26: 983; ALRC 38: 233(a)

facilitating proof

inconsistencies, uncertainties and other criticisms ALRC 26: 325-8, 482-3, 498, App C 69-76, 273, 275, 282, 284

proposals ALRC 26: 993; ALRC 38: 233-5

legislation

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 181-3, 498-501, App C 281-4

proposals ALRC 26: 979-93; ALRC 38: 233-5

computers

inconsistencies, uncertainties and other criticisms ALRC 26: 182, 499, App C, 278, 283-4

proposals ALRC 26: 988;

ALRC 38: 233-5

handwriting

inconsistencies, uncertainties and other criticisms ALRC 26: 182, 500-1, App C, 278, 281-2

proposals ALRC 26: 987; ALRC 38: 233-5

writings

inconsistencies, uncertainties and other criticisms ALRC 26: 182, 498, App C, 278, 281-2

proposals ALRC 26: 985; ALRC, 233-5

machine produced evidence

inconsistencies, uncertainties and other criticisms ALRC 26: 499, App C 278, 283-4

proposals ALRC 26: 988; ALRC 38: 233-5

post ALRC 26, 993, App C 273; ALRC 38: 233(c)-(d)

proposal, rationale for ALRC 26: 979-81

provisional relevance

criticisms ALRC 26: 495-6

proposals ALRC 26: 982; ALRC 38: 123

recordings

inconsistencies, uncertainties and other criticisms ALRC 26: 179, 492, App C 278, 427

proposals ALRC 26: 982; ALRC 38: 233

relevance, see 'provisional relevance', this heading

inconsistencies, uncertainties and other criticisms ALRC 26: 495-6, App C 427

proposals ALRC 26: 982; ALRC 38: 123, 233

safeguards ALRC 26: 992; ALRC 38: 233, 241(c), 241(c), 242

seals

inconsistencies and uncertainties ALRC 26: App C 273

proposals ALRC 26: 974-7; ALRC 38: 232(d), 233(b)

self-authentication

inconsistencies, uncertainties and other criticisms ALRC 26: 491-4, App C 427

proposals ALRC 26: 985-6; ALRC 38: 124, 241(a)

signatures

inconsistencies and uncertainties ALRC 26: App C 273

proposals ALRC 26: 974-7; ALRC 38: 233(d), 234(b)

telecommunications ALRC 26: 993; ALRC 38: 233(d), 234(d)

voir dire

inconsistencies and uncertainties ALRC 26: App C 280

proposals ALRC 26: 990; ALRC 38: 245

Best evidence rule, see 'Documents, secondary evidence of'

Bill, interim

approach to formulation of ALRC 26: 513

courts affected by ALRC 26: 513

credibility, character and conduct, structure of proposals ALRC 26: 823, 879

definitions in

business ALRC 26: 517

document ALRC 26: 518

generally ALRC 26: 515-9

judge ALRC 26: 519

lawyer ALRC 26: 880

person charged with related offence ALRC 26: 519

probative value ALRC 26: 519

proceeding ALRC 26: 516

witness, includes party ALRC 26: 519, 605

operation of ALRC 26: 510

proceedings in which applies ALRC 26: 514

purpose of ALRC 26: 509

scheme of ALRC 26: 510

State and Territory laws in relation to ALRC 26: 512

Bill, final

accessibility ALRC 38: 54

approach to formulation of ALRC 38: 48

Commonwealth laws ALRC 38: 55

courts affected by ALRC 38: 56

definitions

business ALRC 38: 60

client ALRC 38: 195, 200 (n 24)

document ALRC 38: 61

Judge ALRC 38: 62

person charged with related offence ALRC 38: 74

probative value ALRC 38: 62, 122, 146

proceeding ALRC 38: 58

terminology ALRC 38: 58

witness, includes party ALRC 38: 62

package ALRC 38: 53

principles guiding ALRC 38: 46

proceedings in which applies ALRC 38: 57, 59(a)

State and Territory laws ALRC 38: 55

structure,

character and conduct ALRC 38: 172-4

credibility ALRC 38: 172-4

general ALRC 38: 51

Bill, Evidence (Consequential Amendments) ALRC 38: 52

Burden of proof, see 'Evidence, laws of'

Character, see 'Conduct', 'Credibility evidence'

accused

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 164-5, 394-402, App C 166-71

proposals ALRC 26: 789, 802-3; ALRC 38: 177-8

good character

inconsistencies, uncertainties and other criticismsARC 26: 164, 394-6, App C 167; ALRC 38: App C 27

proposals ALRC 26: 789; ALRC 38: 177-8

leave ALRC 38: 178(a)

prior misconduct

inconsistencies, uncertainties and other criticisms ALRC 26: 165, 400, App C 169-71

notice ALRC 38: 176(b)

proposals ALRC 26: 790; ALRC 38: 175-6

rebuttal evidence of

inconsistencies, uncertainties and other criticisms ALRC 26: 164, 399, App C 168

proposals ALRC 26: 80; ALRC 38: 177, 178(b)-(c)

co-accused ALRC 38: 177-8

dangers of ALRC 26: 403, 799-800

opinion as to

inconsistencies, uncertainties and other criticisms ALRC 26: 396, App C 164

proposals ALRC 26: 805; ALRC 38: 177-8

of parties

civil trials

inconsistencies, uncertainties and other criticisms ALRC 26: 166, App C 172-4

proposals ALRC 26: 789

'character' ALRC 38: 177

character and conduct in issue ALRC 38: 172

criminal trials, see 'accused', 'co-accused', this heading

proposals

character ALRC 26: 785; ALRC 38: 177-8

character and conduct in issue

inconsistencies, uncertainties and other criticisms ALRC 26: App C 162, 165

proposals ALRC 26: 786; ALRC 38: 172

character and conduct relevant to the issues ALRC 26: 787; ALRC 38: 175-8

exclusion, general rule of ALRC 26: 801; ALRC 38: 174

propensity

inconsistencies, uncertainties and other criticisms ALRC 26: 165, 400, App C 169-71; ALRC 38: App C 23

proposals ALRC 26: 785; ALRC 38: 176(a)

psychological research ALRC 26: 795-800

rationale

criticisms of existing rationale ALRC 26: 394, 398

proposals ALRC 26: 789, 793

reputation as to

inconsistencies, uncertainties and other criticisms ALRC 26: 395, 401, App C 163

proposals ALRC 26: 78; ALRC 38: 177-8

theoretical basis for

criticisms ALRC 26: 394, 398

proposals ALRC 26: 795-800

third parties

inconsistencies, uncertainties and other criticisms ALRC 26: 167-70, App C 176-9

proposals ALRC 26: 804; ALRC 38: 177

victims of crime

generally

inconsistencies, uncertainties and other criticisms ALRC 38: App C 28

proposals ALRC 26: 804; ALRC 38: 177-8

victim of sexual crime

inconsistencies, uncertainties and other criticisms ALRC 26: 169-70, 403-4, App C 178-9; ALRC 38: App C 28

proposals ALRC 26: 804; ALRC 38: 177-8

victims of nonsexual crime

inconsistencies, uncertainties and other criticisms ALRC 26: 168, App C 177;

ALRC 38: App C 28

proposals ALRC 26: 804; ALRC 38: 177-8

Cleric communicant privilege, see 'Privilege, confidential relationships,

cleric/communicant'

Client legal privilege, see 'Privilege, litigation and legal services, relating to'

Competence and compellability, legal

aboriginal marriage, traditional

criticisms ALRC 26: 256-7

proposals ALRC 26: 531

accused

inconsistencies, uncertainties and other criticisms ALRC 26: 194-5, 250, App C 7-8

proposals ALRC 26: 528; ALRC 38: 69-73

advocates ALRC 26: 249

de facto marriage partners of accused

inconsistencies, uncertainties and other criticisms ALRC 26: 256-7, App C, 9, 10

proposals ALRC 26: 530-2; ALRC 38: 79-83

experts ALRC 38: App C 4

failure to testify, comment on

inconsistencies, uncertainties and other criticisms ALRC 26: 197-8, 258-9, App C, 11-4

proposals ALRC 26: 549-59; ALRC 38: 71, 73, 83

Family Court ALRC 26: 539; ALRC 38: 55, 77

former spouse of the accused

criticisms ALRC 26: 255

proposals ALRC 26: 529; ALRC 38: 66, 77, 79

general ALRC 26: 525; ALRC 38: 66

heads of State ALRC 26: 526: ALRC 38: 67

judges and jurors

criticisms ALRC 26: 247-8

proposals ALRC 26: 527; ALRC 38: 68

parliamentarians ALRC 26: 526; ALRC 38: 67

parents and children of accused

inconsistencies and uncertainties ALRC 26: App C 10

proposals ALRC 26: 530-4; ALRC 38: 79-83

persons charged with related offence ALRC 38: 74-6; App C 4

persons in relationships with accused

inconsistencies, uncertainties and other criticisms ALRC 26: 256-7, App C 10

proposals ALRC 26: 530-8, 540-8; ALRC 38: 79-83

proposal

interim dissent from ALRC 26: 540-8

operation of ALRC 26: 525; ALRC 38: 67

rationale for ALRC 26: 521

spouse of accused, see 'former spouse', and 'de facto

marriage partners', this heading

accused, as witness for

inconsistencies, uncertainties and other criticisms ALRC 26: 253, App C 9

proposals ALRC 26: 529; ALRC 38: 66, 79

co-accused, witness for

inconsistencies, uncertainties and other criticisms ALRC 26: 254, App C 9

proposals ALRC 26: 529; ALRC 38: 66, 79

final proposal ALRC 38: 66, 79

prosecution, witness for

inconsistencies, uncertainties and other criticisms ALRC 26: 196, 251-2; App C, 9;

ALRC 38: App C 3, 4

proposals ALRC 26: 529; ALRC 38: 66, 79-83

Competence

physical

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 246, App C, 5

proposals ALRC 26: 521, 612; ALRC 38: 64-5

psychological

comprehension ALRC 26: 239-41

factors interfering with logic of conversation ALRC 26: 239-41

generally ALRC 26: 242; ALRC 38: 64-5

honesty test

inconsistencies, uncertainties and other criticisms ALRC 26: 244, App C, 3

proposals ALRC 26: 522; ALRC 38: 64-5

intelligence test

inconsistencies, uncertainties and other criticisms ALRC 26: 244, App C, 3

proposals ALRC 26: 522; ALRC 38: 64-5

loss of

inconsistencies, uncertainties and other criticisms ALRC 26: 199, 523; App C 6

proposal ALRC 38: 64-5

oath test

inconsistencies, uncertainties and other criticisms ALRC 26: 243, App C 2;

ALRC 38: App C 3

proposals ALRC 26: 522; ALRC 38: 64

proposal

interim confirmed ALRC 38: 65

operation of ALRC 26: 522-3

rationale ALRC 26: 521

psychological research ALRC 26: 236-45

Stephen's test

inconsistencies, uncertainties and other criticisms ALRC 26: 237-42, App C 4

proposals ALRC 26: 522

understanding test

inconsistencies, uncertainties and other criticisms ALRC 26: 244, App C 3

proposals ALRC 26: 522

testify, becoming unfit to

inconsistencies and uncertainties ALRC 26: 199; App C 6

proposals ALRC 26: 523: ALRC 38: 64-5

Computers, see 'Authentication, machine produced

evidence'; 'Documents, secondary evidence of; 'Hearsay, computer evidence'

Conditional relevance, see 'Relevance'

Conduct, see 'Character'

accused

co-accused, evidence adduced by inconsistencies, uncertainties

and other criticisms ALRC 26: App C 170

proposals ALRC 26: 811; ALRC 38: 175-6

guidance, lack of ALRC 26: 402

inconsistencies, uncertainties and other criticisms ALRC 26: 164-5, 400-2; App C 166, 169-71

innocent accused, risk to ALRC 26: 402

interim dissent ALRC 26: 812-6

propensity reasoning

inconsistencies, uncertainties and other criticisms ALRC 26: 400-1, App C 169-70;

ALRC 38: App C 23

proposals ALRC 26: 785, 810, 812-6; ALRC 38: 176(a)

proposals ALRC 26: 790, 793, 810-1, 812-6; ALRC 38: 175-6

prosecution, evidence adduced by

inconsistencies, uncertainties and other criticisms ALRC 26: 165, 400-2; App C 167-7

proposals ALRC 26: 810; 812-6; ALRC 38: 175-6

specific rules, absence of ALRC 26: 402

habit

inconsistencies, uncertainties and other criticism ALRC 26: App C 175

proposals ALRC 26: 790, 793, 806, 809; ALRC 38: 175-6

notice of ALRC 38: 176; App C 24

parties in civil trials,

inconsistencies, uncertainties and other criticisms ALRC 26: 166; App C 172-5

proposals ALRC 26: 790, 793; 806, 809; ALRC 38: 175

proposals

character and conduct

in issue ALRC 26: 786; ALRC 38: 172

relevant to knowledge ALRC 26: 787

'propensity' ALRC 26: 785: ALRC 38: 176(a)

third parties

inconsistencies, uncertainties and other criticisms ALRC 26: 167-70; App C 176-8;

ALRC 38: App C 24

proposals ALRC 26: 790, 793; 806-9; ALRC 38: 175-6

victims of crime

non-sexual crime

inconsistencies, uncertainties and other criticisms ALRC 26: 168; ALRC 38: App C 176-7; App C 28

proposals ALRC 26: 790, 793, 806-9; ALRC 38: 175-6

sexual crime

inconsistencies, uncertainties and other criticisms ALRC 26: 169 70, 403-4; App C 176, 178; ALRC 38 App C 28

proposals ALRC 26: 790, 793, 806-9; ALRC 38: 175-6

Confessions, see 'Admissions'

Confidential communications see 'Privileges, confidential relationships'

Contemporaneous statements, see 'Evidence, manner of presenting,

reviving memory' and 'Hearsay, first band'

Convictions and judgments as evidence of factual basis

civil judgments

inconsistencies, uncertainties and other criticisms ALRC 26: App C 155-60

proposals ALRC 26: 782; ALRC 38: 170-1

civil trials

admissibility of convictions in

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 162-3, 385-9; App C 151-2; ALRC 38: App C 22

proposals ALRC 26: 771-80; ALRC 38: 170-1

defamation proceedings,

inconsistencies, uncertainties and other criticisms ALRC 26: 163, App C 151-2

proposals ALRC 26: 783; ALRC 38; 170-1

admissibility of acquittals in

inconsistencies and uncertainties ALRC 26: App C 154

proposals ALRC 26: 781; ALRC 38: 170-1

criminal trials, admissibility of convictions in

generally ALRC 26: 773, App C 153; ALRC 38: 170-1, App C 22

legislation ALRC 26: 162, 386-93; App C 152

obligation to call witnesses

criticisms of existing law ALRC 26: 389

proposals ALRC 26: 779-80; ALRC 38: 170-1, 240-2

presumptions

inconsistencies, uncertainties and other criticisms ALRC 26: 162, 388; App C 152

proposals ALRC 26: 777-8; ALRC 38: 170-1

probative evidence, exclusion of ALRC 26: 385

Queensland and ACT ALRC 26: 388

reasoning in Hollington v Hewthorn ALRC 26: 385

South Australia and Northern Territory

inconsistencies, uncertainties and other criticisms ALRC 26: 162, 387; App C 152

statutory offences, convictions for criticisms ALRC 26: 389

proposals ALRC 26: 775; ALRC 38: 170-1

Trade Practices Act

inconsistencies, uncertainties and other criticisms ALRC 26: 390, App C 152

proposals ALRC 26: 783; ALRC 38; 55, 170-1

probate and letters of administration

inconsistencies and uncertainties and other criticisms ALRC 26: App C 161

proposals ALRC 26: 782; ALRC 38: 170-1

declarations of legitimacy

inconsistencies, uncertainties and other criticisms ALRC 26: 391, App C 152, 155-60

proposals ALRC 26: 393, 512; ALRC 38: 55

declarations of paternity

inconsistencies, uncertainties and other criticisms ALRC 26: 392, App C 155-60

proposals ALRC 26: 393, 512; ALRC 38: 55

proposal

admissible against convicted person only ALRC 26: 774; ALRC 38: 170-1

courts martial ALRC 26: 775; ALRC 38: 170 (n 2), 171

plea of guilty ALRC 26: 775; ALRC 38: 170-1

rationale ALRC 26: 771

safeguards ALRC 26: 779; ALRC 38: 170-1, 240-2

Corroboration

accomplices

inconsistencies, uncertainties and other criticisms ALRC 26: 210, 488; App C 299

proposals ALRC 26: 1017; ALRC 38: 238-9

accused, statement by ALRC 26: 1017; ALRC 38; 238-9

categories of witnesses and offences

inconsistencies, uncertainties and other criticisms ALRC 26: 210, 488; App C 298-307; ALRC 38: App C 43-4

proposals ALRC 26: 1010-4; 1017; ALRC 38: 238-9

children

inconsistencies, uncertainties and other criticisms ALRC 26: 210; App C 304-5; ALRC 38: App C 44

proposals ALRC 26: 1017; ALRC 38: 238-9

complexity and detail of present law ALRC 26: 490, App C 298-307; ALRC 38: App C 43

definition of

inconsistencies, uncertainties and other criticisms ALRC 26: 489, App C, 308-9

proposals ALRC 26: 1015-6; ALRC 38: 238-9

directions to juries

criticisms ALRC 26: 490; ALRC 38: App C 43

proposals ALRC 26: 1015-20; ALRC 38: 238-9

hearsay ALRC 26: 720; ALRC 38: 238-9

misleading the jury

criticisms ALRC 26: 490

proposals ALRC 26: 1015; ALRC 38: 239-9

other unreliable evidence, failure to warn on criticisms ALRC 26: 490

proposals ALRC 26: 1017; ALRC 38: 238-9

proposals

psychological research ALRC 26: 490

rationale ALRC 26: 1009-14

perjury

existing requirements, preservation of ALRC 26: 1022; ALRC 38: 238-9

generally

inconsistencies and uncertainties ALRC 26: App C 306

proposals ALRC 26: 102-1; ALRC 38: 238-9

psychological research ALRC 26: 490

requirement of

inconsistencies and uncertainties and other criticisms ALRC 26: 209, App C 298-307; ALRC 38: App C 43-4

proposals ALRC 26: 1015-20; ALRC 38: 238-9

sexual cases

inconsistencies, uncertainties and other criticisms ALRC 26: 210, 490; App C 302; ALRC 38; App C 44

proposals ALRC 26: 1017

unfair discrimination ALRC 26: 490

warnings

criticisms ALRC 26; 490; ALRC 38: App C 43-4

proposals ALRC 26: 1015-20; ALRC 38: 238-9

Credibility evidence

accused

cross-examination of

by prosecution

inconsistencies, uncertainties and other criticisms ALRC 26: 173, 411; App C 187

proposals ALRC 26: 820-2; ALRC 38: 179(b), (d), 180(b), (d)

by co-accused

inconsistencies, uncertainties and other criticisms ALRC 26: 164, 173, 412; App C 187

proposals ALRC 26: 820-22; ALRC 38: 179(b), (d), 180(b), (d)

discretion to control

inconsistencies, uncertainties and other criticisms ALRC 26: 413, App C 187

proposals ALRC 26: 820-22; ALRC 38: 179(b), 180(b)

inconsistencies, uncertainties and other criticisms ALRC 26: 171-3, 405-13, App C 186: ALRC 38: App C 25

proposals ALRC 26: 791-3, 817, 822; ALRC 38: 179-81

hearsay ALRC 26: 721; ALRC 38: 131(c)

limits on

inconsistencies, uncertainties and other criticisms ALRC 26: 408, App C 180

proposals ALRC 26: 793, 800, 819; ALRC 38: 179-81

opinion evidence

inconsistencies, uncertainties and other criticisms ALRC 26: 407, App C 183

proposals ALRC 26: 819; ALRC 38: 179-81

prior convictions, use of

inconsistencies, uncertainties and other criticisms ALRC 26: 410, App C 183

proposals ALRC 26: 819; ALRC 38: 180(c)

proposal

rationale ALRC 26: 405, 791-800, 817-8, 820

psychological research ALRC 26: 795-800

structure of legislation ALRC 26: 823; ALRC 38: 172-4

psychological research ALRC 26: 795, 80D

rebuttal of evidence

inconsistencies, uncertainties and other criticisms ALRC 26: 172, 409; App C 181-5

proposals ALRC 26: 819; ALRC 38: 179(c)-(d), 180(c)-(d)

relevant for other purposes ALRC 38: 180(a)

reputation

inconsistencies, uncertainties and other criticisms ALRC 26: 406, App C 183

proposals ALRC 26: 791-3, 817-9; ALRC 38: 179-81

theoretical basis ALRC 26: 405

unsworn statement

criticisms ALRC 26: 272

proposals ALRC 26: 592; ALRC 38: 87(h)

witnesses

inconsistencies, uncertainties and other criticisms ALRC 26; 171-2, 405-10; App C 180-5

proposals ALRC 26: 791-3, 817-9; ALRC 38: 179-81

Declarations of deceased persons, see 'Hearsay'

Discretions, see 'Relevance, discretionary elements in'

admission unfairly obtained

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 150-3, 382-4; App C 145-8; ALRC 38: 159; App C 21

proposals ALRC 26: 967

need for ALRC 38: 160(b), 162

proposals ALRC 26: 761; ALRC 38: 160

appellate review and

criticisms ALRC 26: 383

inconsistencies, uncertainties and other criticisms ALRC 26: 167-8

proposals ALRC 26: 968

hearsay evidence ALRC 26: 639; ALRC 38: 146

illegally or improperly obtained evidence

admissions

inconsistencies, uncertainties and other criticisms ALRC 26: 149,471, App C 144, 270

proposals ALRC 26: 965; ALRC 38: 154(b), 158(d), 164(a)

alternatives to exclusion, relevance of

criticisms ALRC 26: 472

proposals ALRC 26: 964-5: ALRC 38: 63, 154(b), 158(d), 164(a)

civil trials

inconsistencies, uncertainties and other criticisms ALRC 26: 154; ALRC 38: App C 40

proposals ALRC 26: 964-6; ALRC 38: 154

consequentially discovered evidence

inconsistencies, uncertainties and other criticisms ALRC 26: App C 144

proposals ALRC 26: 966; ALRC 38: 154(b), 158(d), 164(a)

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 468 73, App C 144, 260

proposals ALRC 26: 958-66; ALRC 38: 154(b), 158(d), 164(a)

lack of guidelines

criticisms ALRC 26: 470

proposals ALRC 26: 964-5; ALRC 38: 154(b), 158(d), 164(a)

onus of proof and ALRC 26: 964-5; ALRC 38: 164(a)

options ALRC 26: 960-3; ALRC 38: 164(a)

policies and priorities not articulated

inconsistencies, uncertainties and other criticisms ALRC 26: 468-9, App C 260-1

proposals ALRC 26: 964-5; ALRC 38: 154(b), 164(a)

proposal ALRC 26: 964; ALRC 38: 154(b), 158(d), 164(a)

public interests underlying ALRC 26: 958-9, App C 260-1

probative value/prejudice

inconsistencies, uncertainties and other criticisms ALRC 26: 148, App C 143, 259; ALRC 38: App C 19

proposals ALRC 26: 761, 957; ALRC 38: 63, 146

Dispensing with rules, see 'Rules, dispensing with'

Doctor/patient privilege, see 'Privilege'

Documents, secondary evidence of

affidavits ALRC 38: 230-2, 241

authentication of

inconsistencies, uncertainties and other criticisms ALRC 26: 319, App C 278, 81-2

proposals ALRC 26: 656, 659, 660; ALRC 38: 229-32

common law

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 174-5, 319-22, App C 61-4

alternatives to ALRC 26: 320

modern technology and

criticisms ALRC 26: 321

proposals ALRC 26: 648, 651; ALRC 38: 229-32

public documents

criticisms ALRC 26: 322

proposals ALRC 26: 653-6; ALRC 38: 229-32

'document in question' ALRC 38: 232

foreign document, ALRC 38: 229-31, and see below 'reproductions

legislation, documents in foreign countries'

legislation

general

inconsistencies, uncertainties and other criticisms ALRC 26: 176-7, 323-8; App C 65-76

proposals ALRC 26: 653-6; ALRC 38: 229-31

public documents, see below, 'public documents' reproductions,

see below, 'reproductions legislation'

proposal

generally ALRC 26: 648; ALRC 38: 229-32

rationale ALRC 26: 648

public documents

Australian public documents

inconsistencies, uncertainties and other criticisms ALRC 26: 327, App C 69, 71-6

proposals ALRC 26: 656

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 176-7, 322, 325-8, App C 69-76; ALRC 38: App C 41

proposals ALRC 26: 653-6; ALRC 38: 229-32

rationale ALRC 26: 648

reproductions legislation

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 176-7, 323; App C 658

proposals ALRC 26: 649, 53-60; ALRC 38, 229-34

affidavits ALRC 26: 659

approved machines ALRC 26: 323, App C 65

discovery ALRC 26: 658; ALRC 38: 229, 241(c), (e)

documents in foreign countries

inconsistencies, uncertainties and other criticisms ALRC 26: App C 70, 328

proposals ALRC 26: 651; ALRC 38: 229

inferences ALRC 26: 660; ALRC 38: 233(a), 241

proposal ALRC 26: 649-52; ALRC 38: 229-30

rationale ALRC 26: 648

safeguards

inconsistencies, uncertainties and other criticisms ALRC 26: 323, App C 65

proposals ALRC 26: 657-8; ALRC 26: 229-32, 241

weight ALRC 26: 323

Evidence, laws of

adjectival law and ALRC 26: 38-45

admissibility rates ALRC 26: 38; ALRC 38: 4

adversary trial and ALRC 26: 65-7; ALRC 38: 28

burden or proof ALRC 26: 33-4

course or trial, rules controlling ALRC 26: 40-1; ALRC 38: 104

de facto reform ALRC 26: 231-5; ALRC 38: 22

definition ALRC 26: 27-47: ALRC 38: 4

dispensing with, see 'Rules, dispensing with'

documents, interpretation of ALRC 26: 32

estoppels ALRC 26: 32

evidential burden ALRC 26: 35

exclusionary rates ALRC 26: 38; ALRC 38:4

future ALRC 38: 7-8, 17-9

judicial notice ALRC 26: 45; ALRC 38

juries ALRC 26: 49-53; 68-79; ALRC 38: 28

origins

adversary system ALRC 26: 52-3; ALRC 38: 28

child of the jury ALRC 26: 49-53

jury trial ALRC 26: 68-79; ALRC 38: 28

presumptions

conclusive ALRC 26: 36

evidential ALRC 26: 44

generally ALRC 38: 234

of fact ALRC 26: 44

persuasive ALRC 26: 36-7

proposals ALRC 26: 979; ALRC 38: 233-5

purposes of ALRC 26: 48-88; ALRC 38: 27-47

civil trial, serving ALRC 26: 56-7; ALRC 38: 33-4

criminal trial, serving ALRC 26: 58-62; ALRC 38: 35-46

jury trial, serving ALRC 26: 49-53: 68-79; ALRC 38: 28

policies, serving other ALRC 26: 80; ALRC 38: 30, 47

search for truth ALRC 26: 54-5; ALRC 38: 31-2

trial system, serving ALRC 26: 82-8; 54-62; ALRC 38: 30-46

reform, need for ALRC 26: 231-5; ALRC 38: 22

substantive law ALRC 26: 32-7

topics excluded ALRC 26: 46; ALRC 38: 4

topics included ALRC 26: 47; ALRC 38: 4

uniformity ALRC 26: 213-30; ALRC 38: 21-5

witnesses, judge's right to call or question ALRC 26: 42-3

Evidence, manner of presenting

cross-examination

general

inconsistencies, uncertainties and other criticisms ALRC 26: 298-308, App C 41-54; ALRC 38: App C 7-8

proposals ALRC 26: 605, 630-5; ALRC 38: 115-6

Browne v Dunn, rule in

inconsistencies, uncertainties and other criticisms ALRC 26: 207 8, 308; App C 50-4

proposals ALRC 26: 633; ALRC 38: 115(h)

documents

cross-examination on ALRC 26: 303-7, App C 45-9; ALRC 38: App C 7

production of ALRC 26: 636; ALRC 38: 115(f), 116(d)

improper, see 'witness protection' this heading

leading questions

criticisms ALRC 26: 302

proposals ALRC 26: 632; ALRC 38: 115(c), 116(b)

prior statements of witness

inconsistencies, uncertainties and other criticisms ALRC 26: 205, 303-6; App C 45-9

proposals ALRC 26: 636; ALRC 38: 115(d), 116(c)

prior statements of other witness

inconsistencies uncertainties and other criticisms ALRC 26: 307, 636

proposal ALRC 38: 115(d), 116(c)

witness called in error

criticisms ALRC 26: 298-9

proposals ALRC 26: 630; ALRC 38: 115(a), 116

witness, protection

inconsistencies, uncertainties and other criticisms ALRC 26: 300-1, App C 41-4

proposals ALRC 26: 631; ALRC 38: 115(b), 116(a)

examination in chief

inconsistencies, uncertainties and other criticisms ALRC 26; 292-6, App C 29-40

proposals ALRC 26: 605, 618; ALRC 38: 113-4

hostile witness

inconsistencies, uncertainties and other criticisms ALRC 26: 204, 294-7; App C 39-40

rationale of law ALRC 26: 623-4

proposal ALRC 26: 621-7; ALRC 38: 113(b), 114

interpreter

criticisms ALRC 26: 282-5

proposals ALRC 26: 610-3; ALRC 38: 111(d), 112(a)

leading questions

cross-examination

inconsistencies, uncertainties and other criticisms ALRC 26: 282, App C 43

proposals ALRC 26: 632; ALRC 38: 115(c), 116(b)

examination in chief

inconsistencies, uncertainties and other criticisms ALRC 26: 292, App C 29-33

proposals ALRC 26: 618-9; ALRC 38: 113(a), 114

narration, free

criticisms ALRC 26: 281

proposals ALRC 26: 607-9, ALRC 38: 111(c), 112

proposal

court's powers, reservation of ALRC 26: 604; ALRC 38: 107-8

definitions ALRC 26: 605

discretionary approach ALRC 26: 599

generally ALRC 26: 604-37; ALRC 38: 107-18

guiding principles ALRC 26: 596-603

leave ALRC 26: 606

legislation or rules of court ALRC 26: 63

psychological research ALRC 26: 607

rules of admissibility and ALRC 38: 109

re-examination

criticisms ALRC 26: 628-9

proposals ALRC 26: 605, 628-9; ALRC 38: 113-4,117-8

refreshing memory, see 'reviving memory' below, this

heading

reviving memory

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 206, 286-9 App C 25-8 ALRC 38: App C 7-8

proposals ALRC 26: 614-6; ALRC 38: 111 (e)-(f), 112(b)

document used in

inability to read to court

inconsistencies, uncertainties and other criticisms ALRC 26: 287, App C 26

proposals ALRC 26: 615; ALRC 38: 111(e)

inability to tender

criticisms ALRC 26: 286; ALRC 38: App C 8

proposals ALRC 26: 616; ALRC 38: 111-2

in court

inconsistencies, uncertainties and other criticisms ALRC 26: 286-7, App C 25-6

proposals ALRC 26: 615; ALRC 38: 111(e), 112

out of court

inconsistencies, uncertainties and other criticisms ALRC 26: 288-9, App C 27; ALRC 33: App C 8

proposals ALRC 26: 616: ALRC 33: 111-2

right to production of, absence of

inconsistencies, uncertainties and other criticisms ALRC 26: 288-9, App C 27, 8

proposals ALRC 26: 616; ALRC 38: 111(e), (f), 112

terminology ALRC 26: 614

unfavourable witness

inconsistencies, uncertainties and other criticisms ALRC 26: 203, 294-7, App C 34-40

proposals ALRC 26: 621-7; ALRC 38: 113(b), 114

Walker v Walker, rule in

criticisms ALRC 26: 290-1

proposals ALRC 26: 617; ALRC 38: 111(g), 112

witness called in error

criticisms ALRC 26: 298-9

proposals ALRC 26: 630; ALRC 38: 115(a), 116

Evidence, unsworn

abolition or retention

generally ALRC 26: 584-91; ALRC 38: 88-94, 101-5

arguments ALRC 26: 585-89, ALRC 38: 88-94, 101-5

conclusion ALRC 26: 591, ALRC 38: 91-4

dissent ALRC 38: 101-5

experience where abolished ALRC 26: 590, ALRC 38: 88

advice on rights ALRC 26: 592, ALRC 38: 87(c), 94

character evidence in

inconsistencies, uncertainties and other criticisms ALRC 26: 272, App C 22; ALRC 38: App C 6

proposals ALRC 26: 592, ALRC 38: 97(h), 94

co-accused, by

inconsistencies, uncertainties and other criticisms ALRC 26: 202, 274-7; App C 24

proposals ALRC 26: 592, ALRC 38: 87(f)

comment on

dissent ALRC 38: 106

inconsistencies, uncertainties and other criticisms ALRC 26: 202, 278-9, App C 20

proposals ALRC 26: 592; ALRC 38: 87(g), 93, 97

control of

inconsistencies, uncertainties and other criticisms ALRC 26: 202, 271-2, App C 21-2; ALRC 38: 87(a), 95, 98-100

proposals ALRC 26: 592; ALRC 38: 87(a), 95, 98-100

evidentiary character

inconsistencies and uncertainties ALRC 26: 202; App C 21-3

proposals ALRC 26: 592; ALRC 38: 87(a), 96, 99

leave to make ALRC 38: 98

legal assistance ALRC 38: 87(c), 99

perjury and ALRC 38: 87(b), 99

preparation

inconsistencies, uncertainties and other criticisms ALRC 26: 271-2, App C 20

proposals ALRC 26: 592; ALRC 38: 87(c), 99

proposal

general ALRC 26: 586; ALRC 38: 88

psychological research ALRC 26: 276-7; ALRC 38: 87-100

rationale ALRC 26: 560, 584, 591

psychological research ALRC 26: 276-7

reform proposals, other ALRC 38: 88

summary proceedings

inconsistencies and uncertainties ALRC 26: 202; App C 19

proposals ALRC 26: 592; ALRC 38: 87, 94

sworn evidence, right to give

inconsistencies, uncertainties and other criticisms ALRC 26: 273, App C 20

proposals ALRC 26: 592; ALRC 87(d)

uniformity ALRC 38: 99

use of ALRC 26: 584

Expert, evidence of, see 'Hearsay', 'Opinion evidence'

Eye witness identification

acquittal, power to direct

inconsistencies, uncertainties and other criticisms ALRC 26: 129, 422-6, 431-2; App C 194; ALRC 38: App C 29

proposals ALRC 26: 431-2, 840-2, 846; ALRC 38: 191-2

assumptions underlying the law ALRC 26: 127-9; 417-8, App C 188-94; ALRC 38: 183-4, App C 29

civil trials ALRC 26: 414, 824; ALRC 38: 182

confidence and accuracy ALRC 26: 429

Criminal Investigation, Report on ALRC 26: 825

discretion to exclude

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 424-6, App C 189; ALRC 38: App C 29

proposals ALRC 26: 643-5, 957-64; ALRC 38: 63, 146, 154(f), 158(d), 164(a)

expertise, lack of ALRC 26: 425

reluctance to use ALRC 26: 424

dock identification

criticisms ALRC 26: 433-4

proposals ALRC 26: 930-34; 840-6; ALRC 38: 185-7

hearsay ALRC 26: 131; App C 84-5

injustice, cause of ALRC 26: 415-6

jury directions

general

inconsistencies, uncertainties and other criticisms ALRC 26: 128, 427-30; App C 191-3

proposals ALRC 26: 840-3, 846; ALRC 38: 191-2

limited scope of ALRC 26: 427; ALRC 38: 191, App C 29

mis-estimation, danger of ALRC 26: 428-30

lack of expertise and ALRC 26: 425, 432; ALRC 38: App C 29

mis-estimation, danger of ALRC 26: 426, 428-30; ALRC 38: 183-4; App C 29

pictures, identification by

general

inconsistencies, uncertainties and other criticisms ALRC 26: 127, 435; App C 190

proposals ALRC 26: 837-9; 840-6; ALRC 38: 188-90

dangers ALRC 26: 435; ALRC 38: 189

parade as a condition precedent ALRC 26: 830; ALRC 38: 185-7

proposals ALRC 26: 835; ALRC 38: 188-90

processes involved in ALRC 26: 419-21

proposals

expert testimony ALRC 26: 845, 6

failure to attend parade ALRC 26: 832-3; ALRC 38: 185-7

parade as a condition precedent ALRC 26: 830-4, 46; ALRC 38: 185-7

psychological research, see also 'Hearsay' ALRC 26: 420-1, 426, 435

rationale ALRC 26: 826-9, 835-6; ALRC 38: 182-4

psychological research, see also 'Hearsay' ALRC 26: 420-1, 426, 435

rules controlling

inconsistencies, uncertainties and other criticisms ALRC 26: 417, 422-3, App C 188-94

proposals ALRC 26: 830-46; ALRC 38: 182-90

special treatment, need for ALRC 26: 436

weaknesses of ALRC 26: 419-21

memory, factors that distort ALRC 26: 421

perception, factors affecting ALRC 26: 420

unconscious transference ALRC 26: 421

Failure to give evidence

inferences from ALRC 26: 549-54; ALRC 38: 71

judicial comment

inconsistencies, uncertainties and other criticisms ALRC 26: 197-8, 258; App C 11-4

proposals ALRC 26: 555-9; ALRC 38: 71, 83

prosecution comment

inconsistencies, uncertainties and other criticisms ALRC 26: 197-8, 259-60; App C 11-4

proposals ALRC 26: 555-9; ALRC 38: 71, 83

Family Court

competence and compellability

existing law ALRC 26: App C 9

proposals ALRC 26: 539; ALRC 38: 55, 77-8

privilege

existing law ALRC 26: App C 196

proposals ALRC 26: 893-9; ALRC 38: 77-8

statistics

inconsistencies, uncertainties and other criticisms ALRC 26: App C 273

proposals ALRC 26: 978; ALRC 38: 55

Federal courts ALRC 26: 2, 4: ALRC 38: 3

Guiding principles ALRC 26: 48-88; ALRC 38: 46

Hearsay rule, see 'Admissions', 'Opinion evidence'

business records

inconsistencies, uncertainties and other criticisms ALRC 26: 132-4, 342-4, App C 79, 94; ALRC 38: App C 12

proposals ALRC 26: 701-9; ALRC 38: 60, 129-4

common law

criticisms, other

anomalies ALRC 26: 331-2

artificiality ALRC 26: 331-3

complexity ALRC 26: 331

costs, impact on ALRC 26: 340, 681

definition of ALRC 38: App C 11

excludes probative evidence ALRC 26: 330; ALRC 38: App C 11

generally ALRC 26: 329-40

ignored ALRC 38: App C 11

inflexibility ALRC 26: 337

interruption of witnesses ALRC 26: 339

lying in wait ALRC 26: 336

technicality ALRC 26: 331

waiver of ALRC 26: 336

inconsistencies and uncertainties ALRC 26: App C 77-91; ALRC 38: App C 11-4

proposals ALRC 26: 682-710

understanding of law, lack of ALRC 26: 335; ALRC 38: App C 11

complaints ALRC 38: App C 15

computer evidence

inconsistencies, uncertainties and other criticisms ALRC 26: 344, App C 94; ALRC 38: App C, 12, 13

proposals ALRC 26: 702-9; ALRC 38: 60, 129-34

corroboration

criticisms ALRC 26: 488

proposals ALRC 26: 720; ALRC 38: 238-9

credibility of maker, evidence as to

criticisms ALRC 26: 342

proposals ALRC 26: 721; ALRC 38: 131(c)

definition

inconsistencies and uncertainties ALRC 26: 130; App C 77-8; ALRC 38: App C 11

proposals ALRC 26: 684-5; ALRC 38: 126, 133

discovery

criticisms ALRC 26: 343-4

proposals ALRC 26: 680, 715-7; ALRC 38: 131(a), 241(e)

discretions, see 'Discretions'

discretion to admit, residual ALRC 26: 689

relevance ALRC 38: 146

dissent

firsthand hearsay ALRC 38: 147

exceptions, common law

basis of expert opinion

inconsistencies, uncertainties and other criticisms ALRC 26: 131, 334, App C 91

proposals ALRC 26: 685; ALRC 38: 144(b), 145

depositions

inconsistencies, uncertainties and other criticisms ALRC 26: 131, 330-33; App C 86

proposals ALRC 26: 682-700; ALRC 38: 128(a); 142

dying declarations

inconsistencies, uncertainties and other criticisms ALRC 26: 131, 330-40, App C 80

proposals ALRC 26: 682-7, 691-2; ALRC 38: 128(a), 142

general

inconsistencies, uncertainties and other criticisms ALRC 26: 131, 330-40, App C 79-91; ALRC 38: App C 11-16

proposals ALRC 26: 682-710; ALRC 38: 127-146

health, statements about

inconsistencies, uncertainties and other criticisms ALRC 26: 131, 330-3; App C 83

proposals ALRC 26: 682-7, 691-2; ALRC 38: 127-8, 133-45

identification

inconsistencies, uncertainties and other criticisms ALRC 26: 131, 330-40; App C 84

proposals ALRC 26: 682-6, 691-5; ALRC 38: 127-8, 133-45

res gestae

inconsistencies and uncertainties ALRC 26: 131; App C 82; ALRC 38: App C 14

proposals ALRC 26; 686-700; ALRC 38: 127-8, 133-45

state of mind ALRC 38: App C 12

statements, prior consistent and inconsistent

inconsistencies, uncertainties and other criticisms ALRC 26: 131, 334; App C 87-8

proposals ALRC 26: 685; ALRC 38: 144, 5

experts, hearsay evidence of

inconsistencies, uncertainties and other criticisms ALRC 26: 334, App C 89-91

proposals ALRC 26: 685; ALRC 38: 133-4, 144(b), 145

firsthand

civil trials

inconsistencies, uncertainties and other criticisms ALRC 26: 330-45, App C 77-94; ALRC 38: App C 11-16

proposals ALRC 26: 686-90, 695-700; ALRC 38: 126-7, 133-46,

criminal trials

inconsistencies, uncertainties and other criticisms ALRC 26: 330-45, App C 77-94

proposals ALRC 26: 686, 691-700; ALRC 38: 128, 133-46

identification evidence, see this heading 'exceptions,

common law, identification'

inferences relevant to admissibility

inconsistencies and uncertainties ALRC 26: App C 94

proposals ALRC 26: 722; ALRC 38: 241(a)

interlocutory proceedings ALRC 38: 133-4, 143(f)

labels, tags, etc

inconsistencies and uncertainties ALRC 26: App C 94

proposals ALRC 26: 712; ALRC 38: 129; 133-4

legislation

business records, see this heading 'business records'

computer evidence ALRC 26; 344

general

inconsistencies, uncertainties and other criticisms ALRC 26: 132-4, 329, 341-5, App C 92-4; ALRC 38: App C 12-3, 15

proposals ALRC 26: 701-9; 711-2; ALRC 38: 127-45

records ALRC 26: 342-4

statements in documents ALRC 26: 343

telecommunications ALRC 26: 342-3; ALRC 38: 129,133-4

non-hearsay purpose, evidence admitted for

criticisms ALRC 26: 334

proposals ALRC 26: 685; ALRC 38: 144-5

options ALRC 38: 138

privilege ALRC 26: 718

proposal

affidavit ALRC 26: 699; ALRC 38: 241(b)

ancillary provisions ALRC 26: 713, 721, 2; ALRC 38: 131, 241

application ALRC 26: 683; ALRC 38: 132

controls, discretionary ALRC 38: 130

cost and time ALRC 26: 681

fresh in the memory ALRC 26: 686-8, 691-3; ALRC 38: 127-8, 133-4

outline of ALRC 26: 682; ALRC 38: 127-34

notice ALRC 26: 680, 695-8; ALRC 38: 127-8, 143(e)

rationale

criminal trials ALRC 26: 679; ALRC 38: 139-41

exceptions to rule ALRC 26: 676-91; 701-5; ALRC 38: 139, 141

exclusionary rule ALRC 26: 661-75; ALRC 38: 126, 141

safeguards ALRC 26: 690; ALRC 38: 131, 140, 143(e)

structure ALRC 38: 132, 142

proposals, Scotland ALRC 38: 136-8

psychological research ALRC 26; 664-71, 678, see

'Eyewitness identification'

records, public and commercial

inconsistencies, uncertainties and other criticisms ALRC 26: 341-4, App C 79, 81, 94; ALRC 38: 12

proposals ALRC 26: 701-9; ALRC 38: 129-31, 133-4

reputation

criticisms ALRC 26: 331, 710

proposals ALRC 26: 710; ALRC 38: 129, 133-4

res gestae

inconsistencies, uncertainties and other criticisms ALRC 26: 131, 330-3, App C 82: ALRC 38: App C 14

proposals ALRC 26: 686-700; ALRC 38: 127-9, 133-4, 142-3

rule, scope of, (for exceptions see 'exceptions, common

law and legislation', this heading)

inconsistencies, uncertainties and other criticisms ALRC 26: 130, 330, App C 77-8,

82, 83, 86; ALRC 38: App C 11

proposals ALRC 26: 661-675; ALRC 38: 126, 133-4

second-hand

inconsistencies, uncertainties and other criticisms ALRC 26: 330-1, 341-5, App C 77-94

proposals ALRC 26: 701-12; ALRC 38: 129

statements, prior consistent and inconsistent

inconsistencies, uncertainties and other criticisms ALRC 26: 131, 334, App C 87-8

proposals ALRC 26: 685; ALRC 38: 144(a), 145

statements in documents

inconsistencies, uncertainties and other criticisms ALRC 26: 342-3, App C 77-91, 94

proposals ALRC 26: 686-700; ALRC 38: 126-8, 130-46

telecommunications

inconsistencies, uncertainties and other criticisms ALRC 26: 345, App C 94

proposals ALRC 26: 711; ALRC 38: 129, 133-4

weight

criticisms ALRC 26: 342-4

inconsistencies and uncertainties ALRC 26: App C 94

proposals ALRC 26: 714

Hollington v Hewthorn, see 'Convictions and judgments

as evidence of factual basis'

Hypnosis ALRC 38: 18

Identification, eye witness see 'Eyewitness identification'

Illegally or improperly obtained evidence, see 'Discretions'

Informer's identity privilege, see 'Privilege'

Interpreter, see 'Evidence, manner of presenting'

Journalists, see 'Privilege, newsperson'

Judicial notice, see 'Proof not required, matters of which . . ., '

Juries

abilities of ALRC 26: 75-8

attitudes to ALRC 26: 70-4

directions to ALRC 26: 72-4

federal courts ALRC 26: 50; ALRC 38: 28

laws of evidence, relationship with ALRC 26: 68-79; ALRC 38: 28

Territory courts ALRC 26: 50

Leading questions, see 'Evidence, manner of presenting'

Legal professional privilege, see 'Privilege, litigation and

legal services')

Oath, see also 'Affirmation' and 'Unsworn evidence'

abolition or retention

arguments ALRC 26: 560-70; ALRC 38: 86

conclusion ALRC 26: 571-4; 576-8, 580-1; ALRC 38: 95-6

administration of

inconsistencies, uncertainties and other criticisms ALRC 26: 265, App C 15-6, 18; ALRC 38: App C 5

proposals ALRC 26: 575; ALRC 38: 85-6

forms of

criticisms ALRC 26: 262-4

inconsistencies, uncertainties and other criticisms ALRC 26: 262-4, App C 15-6, 18; ALRC 38: App C 5

proposals ALRC 26: 571-5; 579, 582; ALRC 38: 85-6

legislative consequences of

criticisms ALRC 26: 266

proposals ALRC 26: 575; ALRC 38: 85-6

perjury warning, absence of

criticisms ALRC 26: 269

proposals ALRC 26: 574, 6; ALRC 38: 85-6

reform proposals ALRC 26: 561

Opinion evidence

common law

inconsistencies, uncertainties and other criticisms ALRC 26: 155-61, 346-59, 362-3,App C 95; ALRC 38: App C 17

proposals ALRC 26: 731-51; ALRC 38: 148-51

definition

inconsistencies, uncertainties and other criticisms ALRC 26: 156, 348, App C 95-6

distorting evidence ALRC 26: 351

expert opinion

area of expertise requirement

inconsistencies, uncertainties and other circumstances ALRC 26: 159, 355-8,App C 103-4: ALRC 38: App C 18

proposals ALRC 26: 743, 48; ALRC 38: 148-50

basis rule

inconsistencies, uncertainties and other criticisms ALRC 26: 362-3, App C 107-8, 11

proposals ALRC 26: 750; ALRC 38: 144

Bill of Rights ALRC 26: 749

common knowledge

inconsistencies, uncertainties and other criticisms ALRC 26: 158, 354, App C 102

proposals ALRC 26: 743; ALRC 38: 148-50, 151(c)

expert, definition of

inconsistencies, uncertainties and other criticisms ALRC 26: 157, 552, App C 97-100

proposals ALRC 26: 742; ALRC 38: 148-50, 151(b)

Family Court

inconsistencies, uncertainties and other criticisms ALRC 26: 360, App C 109

proposals ALRC 26: 512; ALRC 38: 55

Frye test

inconsistencies, uncertainties and other criticisms ALRC 26: 159, 355-8, App C 103-4; ALRC 38: 148-9; App C 18

proposals ALRC 26: 743-8; ALRC 38: 148-50

inadmissible evidence, based on

inconsistencies, uncertainties and other criticisms ALRC 26: 161, 362-3, App C 107-8, 111; ALRC 38: App C 17

proposals ALRC 26: 756; ALRC 38: 144

parameters

inconsistencies, uncertainties and other criticisms ALRC 26: 158-6, 353-9, App C 101

proposals ALRC 26: 742-8; ALRC 38: 148-51

proposal ALRC 38: 148-51

qualification of expert

inconsistencies, uncertainties and other criticisms ALRC 26: 52, App C 97-100

proposals ALRC 26: 742; ALRC 38: 148-50, 151(b)

reports, exchange of ALRC 38: 150

ultimate issue rule

inconsistencies, uncertainties and other criticisms ALRC 26: 160, 359, App C 105-6; ALRC 38: 148-50: App C 17

proposals ALRC 26: 743; ALRC 38: 148-51; App C 17

fact/opinion distinction

criticisms ALRC 26: 349, 50

proposals ALRC 26: 738; ALRC 38: 148, 151

general

inconsistencies, uncertainties and other criticisms ALRC 26: 352-9, App C 97-11; ALRC 38: App C 17

proposals ALRC 26: 741-51; ALRC 38: 149-51

lay opinion

inconsistencies, uncertainties and other criticisms ALRC 26: 346-7, App C 95, 6

proposals ALRC 26: 739, 40; ALRC 38: 148, 151

legislation ALRC 26: 360-1, App C 109-11

novel scientific evidence

inconsistencies, uncertainties and other criticisms ALRC 26: 159, App C 103-4; ALRC 38: App C 18

proposals ALRC 26: 744-8; ALRC 38: 148-50

practical problems ALRC 26: 350; ALRC 38: 149-50

proposals

rationale ALRC 26: 731, 2

guiding principles ALRC 26: 733-7

rule of exclusion

inconsistencies, uncertainties and other criticisms ALRC 26: 346-7, App C 95

proposals ALRC 26: 738; ALRC 38: 148-51

Presumptions ALRC 26: 36, 44, 979; ALRC 38: 233-5

Privilege

advice as to rights

inconsistencies and uncertainties ALRC 26: 107; App C 211

proposals ALRC 26: 850, 862; ALRC 38: 225

cleric/communicant

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 118-9, 460-1;App C 202-4

dissent ALRC 38: 206-13

proposals ALRC 26: 903-9; ALRC 38: 201-5

common law

inconsistencies, uncertainties and other criticisms ALRC 26: 118, 461, App C 202

legislation

inconsistencies, uncertainties and other criticisms ALRC 26: 119, 460, App C 203-4

privilege for, practical difficulties or ALRC 26: 906-7

proposal ALRC 26: 909; ALRC 38: 201-5

rationale ALRC 26: 848-50, 903-4, 908

confidential relationships, see also 'cleric communicant',

'doctor-patient', 'family members and others', 'newspersons

and their sources', 'peer review', 'litigation and legal

services', this heading

general

criticisms ALRC 26: 463

dissent ALRC 38: 206-13

proposals ALRC 26: 955-6; ALRC 38: 201-3

definition ALRC 26: 847

approach ALRC 26: 848-50

trial context, limited to ALRC 26: 851; ALRC 38: 199

doctor/patient

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 115-7, 453-9; App C 197-201

proposals ALRC 26: 910-8; ALRC 38: 201-5

common law

inconsistencies, uncertainties and other criticisms ALRC 26: 115, 459, App C 197-9

legislation

inconsistencies, uncertainties and other criticisms ALRC 26: 116-7, 453-8, App C 200-1

public interests ALRC 26: 912-4

proposal ALRC 26: 917, 8; ALRC 38: 201-5

rationale ALRC 26: 848-50, 910-6

family members and others, see 'Competence and

compellability'; 'spousal communications, this

heading

inconsistencies and uncertainties ALRC 26: App C 256-7

rationale ALRC 26: 848-50, 900-1

proposal ALRC 26: 900-2; ALRC 38: 77-83, 193-4

identity of informer see also 'State interest privilege'

this heading

inconsistencies, uncertainties and other criticisms ALRC 26: 123; App C 205-6

proposals ALRC 26: 872; ALRC 38: 220-1

rationale ALRC 26: 872; ALRC 38: 220-1

inspection by court ALRC 38: 225

journalists, see 'confidential relationships', 'newspersons',

this heading

judges and arbitrators

inconsistencies and uncertainties ALRC 26: 125, App C 241

proposals ALRC 26: 873-6; ALRC 38: 218-9

rationale ALRC 26: App C 241; ALRC 38: 218-9

jurors

appeals, evidence of deliberation on ALRC 38: 219(a)

proposals ALRC 26: 873-6; ALRC 38: 218-9

rationale ALRC 26: 283-5; ALRC 38: 218

trials, evidence of deliberations on ALRC 38: 219(b)

legal professional, (see 'litigation and legal services')

inappropriate description ALRC 26: 438

litigation and legal services

general

inconsistencies, uncertainties and other criticisms ALRC 26: 108-113, 439-46, App C 230-40; ALRC 38: App C 30-8

proposals ALRC 26: 877-88; ALRC 38: 195-200

claim, who may ALRC 26: 883; ALRC 38: 195, 200

clients, actions between ALRC 26: 884; ALRC 38: 195, 200

common law

inconsistencies, uncertainties and other criticisms ALRC 26: 439-45, App C 230-7; ALRC 38: App C 30-8

communications affecting rights and ALRC 38: 196(c), 200

deceased client ALRC 26: 884; ALRC 38: 195, 200

defence of accused and ALRC 38: 196(c), 200

definitions ALRC 26: 880

disclosure of communication, effect of

inconsistencies, uncertainties and other criticisms ALRC 26: 442, App C 237

proposes ALRC 26: 885; ALRC 38: 195, 200

document not delivered

inconsistencies and uncertainties ALRC 26: App C 237

proposals ALRC 26: 883; ALRC 38: 195-200

document relating solely to party's own case

inconsistencies, uncertainties and other criticisms ALRC 26: 113, 446, App C 231, 238

proposals ALRC 26: 850, 887; ALRC 38: 193 (n 2), 200

duration of privilege

inconsistencies, uncertainties and other criticisms ALRC 26: 440-2, App C 237

proposals ALRC 26: 883; ALRC 38: 195, 196(c), 200

evidence of intention and competence and ALRC 38: 196(c), 200

expert reports

inconsistencies and uncertainties ALRC 26: App C 240

proposals ALRC 26: 889; ALRC 38: 150

fraud or crime, communication in furtherance of

inconsistencies and uncertainties ALRC 26: 112, 441, App C 237; ALRC 38: App C 35-7

proposals ALRC 26: 885; ALRC 38: 195, 197-8, 200

Grant v Downs

generally ALRC 26: 109-11; App C 234

before

inconsistencies, uncertainties and other criticisms ALRC 26: 109, 439, App C 233

effect of

inconsistencies, uncertainties and other criticisms ALRC 26: 110-1, 439, App C, 235-6; ALRC 38: App C 32

experience since ALRC 26: 439; ALRC 38: App C 30-40

improperly obtained copies,

inconsistencies, uncertainties and other criticisms ALRC 26: 440, App C 237; ALRC 38: App C 32

proposals ALRC 26: 883; ALRC 38: 195, 200

'in house lawyers

criticisms ALRC 26: 445

proposals ALRC 26: 879-80; ALRC 38: App C 38

inspection by court,

inconsistencies and uncertainties ALRC 38: App C 38

proposals ALRC 26: 883; ALRC 38: 225

intention and competence, evidence of ALRC 38: 196(c), 200

lawyer, action against ALRC 26: 884; ALRC 38: 195, 200

lawyer/client communication

inconsistencies, uncertainties and other criticisms ALRC 26: 439, App C 233-6

proposals ALRC 26: 879-80; ALRC 38: 195, 200

lawyer/client/third party

inconsistencies, uncertainties and other criticisms ALRC 26: 439, App C 233-7

proposals ALRC 26: 891-2; ALRC 38: 195, 200

legislation

inconsistencies, uncertainties and other criticisms ALRC 26: 446, App C 238-40; ALRC 38: App C 30

litigant in person

inconsistencies, uncertainties and other criticisms ALRC 26: 112, 444, App C 237

proposals ALRC 26: 883; ALRC 38: 195, 200

loss of

inconsistencies and uncertainties ALRC 26: 112, App C 237; ALRC 38: App C 31-5

proposals ALRC 26: 895: ALRC 38: 195, 200

matters of State ALRC 38: 196(b), App C 31

notes and memoranda

inconsistencies, uncertainties and other criticisms ALRC 26: 23 439, App C 237

proposals ALRC 26: 883; ALRC 38: 195, 200

observation of lawyer ALRC 26: 884; ALRC 38: 195, 200

patents

inconsistencies and uncertainties ALRC 26: App C 239

proposals ALRC 26: 888; ALRC 38: 200

police and prosecution, communications to

inconsistencies and uncertainties ALRC 26: App C 237

proposals ALRC 26: 886; ALRC 38: 195-200

public interest privilege and

inconsistencies and uncertainties ALRC 38: App C 31

proposals ALRC 38: 196(b)

rationale

inconsistencies and uncertainties ALRC 26: App C 236

proposals ALRC 26: 848-50, 877-8; ALRC 38: 197-8

secondary evidence

inconsistencies, uncertainties and other criticisms ALRC 26: 112, 440, App C 237; ALRC 38: App C 32

proposals ALRC 26: 883

sole purpose test

inconsistencies, uncertainties and other criticisms ALRC 26: 439, App C 233-6; ALRC 38: 199, App C 32

proposals ALRC 26: 879, 81; ALRC 38: 195-200

waiver

inconsistencies, uncertainties and other criticisms ALRC 26: 442, App C 237; ALRC 38: App C 33-4

proposals ALRC 26: 883; ALRC 38: 195, 196, 200

welfare of children

inconsistencies, uncertainties and other criticisms ALRC 26: 443, App C 237

proposals ALRC 26: 885; ALRC 195-6, 200

minister of religion, see 'cleric/communicant', 'confidential relationships'

negotiations, without prejudice

general

inconsistencies, uncertainties and other criticisms ALRC 26: 124, 447-50, App C 39, 250-6; ALRC 36: App C 39

proposals ALRC 26: 890-4: ALRC 38: 222-3

criminal charges

inconsistencies and uncertainties ALRC 26: App C 254

proposals ALRC 26: 894; ALRC 38: 223(b)

Family Court ALRC 26: 893

loss of protection ALRC 26: 892; ALRC 38: 222

misunderstanding ALRC 26: 447

misuse ALRC 26: 448

proposal ALRC 26: 891-4; ALRC 38: 222-3

rationale ALRC 26: 848-50, 890; ALRC 38: App C 39

scope

criticisms ALRC 26: 449

proposals ALRC 26: 891; ALRC 38: 222-3

newsperson/source

general, see 'confidential relationships'

criticisms ALRC 26: 463

proposals ALRC 26: 948-54; ALRC 38: 201-3

options ALRC 26: 953

proposal ALRC 26: 954; ALRC 38: 201-3

public interests ALRC 26: 949 52

parliamentary privileges ALRC 38: 224

peer review

generally, see 'confidential relationships'

criticisms ALRC 26: 463

proposals ALRC 26: 942-7; ALRC 38: 201-3

definition ALRC 26: 942

development of ALRC 26: 943

public interest ALRC 26: 945

proposal ALRC 26: 947; ALRC 38: 201-3

rationale ALRC 26: 848-50, 944-52

privacy ALRC 26: 848

property in information ALRC 26: 848

psychiatrist/client

inconsistencies, uncertainties and other criticisms ALRC 26: 463, App C 197-201

proposal ALRC 26: 932; ALRC 38: 201-3

public interests ALRC 26: 921, 931

deterrence of patients ALRC 26: 922-3

quality of therapy ALRC 26: 922, 924-9

crime minimisation ALRC 26: 930

avoiding unnecessary hardship ALRC 26: 931

rationale ALRC 26: 848-50, 919-31

self-incrimination, privilege against

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 104-7, 464-5; App C 207-29

proposals ALRC 26: 847-62; ALRC 38: 214-7

abolition of privilege ALRC 26: 853-6

civil trials ALRC 38: 217(a)

common law ALRC 26: 105, 464; App C 208-17

corporations ALRC 26: 107; App C 213-4

legislation ALRC 26: 105-7, 465; App C 218-29

proposal ALRC 26: 862: ALRC 38: 214-7

rationale ALRC 26: 848-50, 852

spouses ALRC 26: 107; App C 212

State/individual balance ALRC 26: 857-61

social worker/client, see 'confidential relationships'

criticisms ALRC 26: 463

proposal ALRC 26: 935-41; ALRC 38: 201-3

public interests ALRC 26: 936-8

rationale ALRC 26: 848-50, 935

spousal communication

abolition of privilege ALRC 26: 897

civil trials

inconsistencies and uncertainties ALRC 26: App C 195

proposals ALRC 26: 898; ALRC 38: 77-8

criminal trials

inconsistencies, uncertainties and other criticisms ALRC 26: 462, App C 195

proposals ALRC 26: 898; ALRC 38: 79-83, 193-4

Family Court

inconsistencies and uncertainties ALRC 26: App C 196

proposals ALRC 26: 998; ALRC 38: 55-6, 77-8

former spouses

inconsistencies and uncertainties ALRC 26: App C 195

proposals ALRC 26: 899: ALRC 38: 77-83

inconsistencies, uncertainties and other criticisms ALRC 26: 114, 462; App C 195-6

proposals ALRC 26: 895-9; ALRC 38: 77-83, 193-4

rationale ALRC 26: 895, 896

state interest privilege

inconsistencies, uncertainties and other criticisms ALRC 26: 120-2, 451-2; App C 242-9

proposals ALRC 26: 863-8; ALRC 38: 220-1

rationale ALRC 26: 848-50, 863-4

title deeds, privilege as to

inconsistencies, uncertainties and other criticisms ALRC 26: 126, 466-7, App C 257-8

proposals ALRC 26: 850; ALRC 38: 193 (n 2), 194

Program, see 'Reference'

Proof, facilitation of

inconsistencies, uncertainties and other criticisms ALRC 26: 325-8, 482-3, 498; App C 69-76, 273, 275; 282, 284; ALRC 38: App C 41

proposals ALRC 26: 993

Proof not required, matters of which

acts of State

inconsistencies and uncertainties ALRC 26: App C 273

proposals ALRC 26: 974-7; ALRC 38: 227-8

common law

artificial distinctions ALRC 26: 480, App C 268-71

constitutional questions ALRC 26: 481, App C 270, 1

development of law ALRC 26: 481

inconsistencies, uncertainties and other criticisms ALRC 26: 102, 478-81, App C 265, 268 72; ALRC 38: App C 42

lack of guidance ALRC 26: 479, App C 268-72

narrowness of principle ALRC 26: 478, App C 268-71

proposals ALRC 26: 973-8; ALRC 38: 227-8

crown certificates ALRC 26: 977; ALRC 38: 227-8

facts

inconsistencies and uncertainties ALRC 26: 102; App C 268; ALRC 38: App C 42

proposals ALRC 26: 974-7; ALRC 38: 227-8

Family Court ALRC 26: 978

law

inconsistencies and uncertainties ALRC 26: App C 265-6, 273; ALRC 38: App C 42

proposals ALRC 26: 973; ALRC 38: 227-8

legislation

general

inconsistencies, uncertainties and other criticisms ALRC 26: 482-7, App C 266-7, 273, 275

proposals ALRC 26: 973-8; ALRC 38: 227-8

delegated legislation

inconsistencies, uncertainties and other criticisms ALRC 26: 483, App C 266-7

proposals ALRC 26: 973; ALRC 38: 227-8

foreign instruments

criticisms ALRC 26: 485

proposals ALRC 26: 977; ALRC 38: 227-8, 233-4

foreign laws

inconsistencies, uncertainties and other criticisms ALRC 26: 496, App C 267

proposals ALRC 26: 977; ALRC 38: 227-8

geography

inconsistencies and uncertainties ALRC 26: App C 273

proposals ALRC 26: 974-7; ALRC 38: 227-8

judge and jury, roles of

criticisms ALRC 26: 487

proposals ALRC 26; 977; ALRC 38: 227-8

matters of history science and an

inconsistencies, uncertainties and other criticisms ALRC 26: 484, App C 273

proposals ALRC 26: 977; ALRC 38: 227-8

orders, commissions ALRC 26: App C 273

parliamentary proceedings

inconsistencies and uncertainties ALRC 26: App C 273

proposals ALRC 26: 974-7; ALRC 38: 227-8, 233(d), 234(c)

post

criticisms ALRC 26: App C 273

proposals ALRC 26: 974-7; ALRC 38: 227-8, 233(d), 234(c)

proclamations, regulations etc

inconsistencies, uncertainties and other criticisms ALRC 26: 483, App C 266-7; ALRC 38: App C 42

proposals ALRC 26: 973; ALRC 38: 227-8

seals and signatures

inconsistencies and uncertainties ALRC 26: App C 273; ALRC 38: App C 42

proposals ALRC 26: 974-7; ALRC 38: 227-8

statistics

inconsistencies and uncertainties ALRC 26: App C 273

proposals ALRC 26: 974-7; ALRC 38: 227-8, 233(d), 234

terminology

inconsistencies, uncertainties and other criticisms ALRC 26: 101, 476-7, 482; App C 262-3; 266-7

proposals ALRC 26: 971; ALRC 38: 227-8

proposal

general ALRC 26: 973, 7, 8; ALRC 38: 227-8

rationale ALRC 26: 969, 978

terminology ALRC 26: 971, 974-7

Proof, standard of

generally

inconsistencies, uncertainties and other criticisms ALRC 26: 474-5, 969; App C 286

proposals ALRC 26: 995-9; ALRC 38: 236(a), 237

civil trials

belief, requirement of

criticisms ALRC 26: 474

proposals ALRC 26: 995; ALRC 38: 237 (n 19)

criminal standard in

inconsistencies, uncertainties and other criticisms ALRC 26: 475, App C 297

proposals ALRC 26: 997; ALRC 38: 236(a), 237

subjective or objective test

criticisms ALRC 26: 474; ALRC 38: 237 (n, 19)

proposals ALRC 26: 995-6; ALRC 38: 237 (n 19)

criminal trial ALRC 26: 1000; ALRC 38: 236(b), 237

object of application of standard

inconsistencies and uncertainties ALRC 26: App C 294-5

proposals ALRC 26: 1007-8; ALRC 38: 236(c), 237

preliminary questions

inconsistencies and uncertainties ALRC 26: 100; App C 294

proposals ALRC 26: 1001-6; ALRC 38: 236(c), 237

proposal

general ALRC 26; 995-1008: ALRC 38: 236-7

rationale ALRC 26: 994

Proposals, see 'Bill, draft', 'Bill, final' and particular topics

of the laws of evidence,

guiding principles ALRC 26: 82-8; ALRC 38: 46-7

Provisional relevance, see 'Relevance'

Psychological research, see particular topics of laws of evidence

Public interest privilege, see 'Privilege'

Real evidence, see 'Authentication and identification', 'Relevance', 'View'

Reference

assumptions underlying

continuation of adversary trial ALRC 26: 11-5; ALRC 38: 28

continuation of laws of evidence ALRC 26: 16-8; ALRC 38: 29

changes in society ALRC 26: 5; ALRC 38: 7-8

cost and time ALRC 26: 9-10; ALRC 38: 9

federal courts ALRC 26: 2, 4; ALRC 38: 3

laws, uniform and comprehensive ALRC 26: 90; ALRC 38: 21-6

program ALRC 26: 19-24; ALRC 38: 11-6

purposes of evidence law, see 'Evidence, laws or ALRC 26: 48-88; ALRC 38: 30-47

review of law ALRC 26: 19-24; ALRC 38: 10

scope of

courts ALRC 26: 2; ALRC 38: 3

laws of evidence ALRC 26: 3; ALRC 38: 4-5

significance of ALRC 26: 4-9; ALRC 38: 6-9

terms of ALRC 26: 1, 90; ALRC 38: 12

Territory courts ALRC 26: 2; ALRC 38: 3

uniformity and reform ALRC 26: 21-4, 90; ALRC 38: 11, 20-6

Refreshing memory, see 'Evidence, manner of presentation', 'Reviving memory'

Relevance

appeals ALRC 26: 647

conditional

criticisms ALRC 26: 495

proposals ALRC 26: 646; ALRC 38: 123

definition

inconsistencies, uncertainties and other criticisms ALRC 26: 94, 313-5, App C 56; ALRC 38: App C 9-10

proposals ALRC 26: 641-2; ALRC 38: 122-5

discretionary elements in

inconsistencies, uncertainties and other criticisms ALRC 26: 94, 314-5, App C 56; ALRC 38: App C 9-10

proposals ALRC 26: 640-5; ALRC 38: 122, 146

evidence, inferences from ALRC 38: 124

formulae, alternative

inconsistencies, uncertainties and other criticisms ALRC 26: 94, 314-8, App C 56; ALRC 38: App C 9-10

narrow view or

criticisms ALRC 26: 313

proposals ALRC 26: 640-5; ALRC 38: 122-5, 146

proposal

confirmed ALRC 38: 122-5

explained ALRC 26: 638-47

rationale ALRC 26: 638-9

provisional

criticisms ALRC 26: 495

proposals ALRC 26: 646; ALRC 38: 123

subjective or objective test

inconsistencies, uncertainties and other criticisms ALRC 26: 95, 316, App C 58

Stephen's approach to

inconsistencies, uncertainties and other criticisms ALRC 26: 317-8, App C 60

test threshold

inconsistencies, uncertainties and other criticisms ALRC 26: 94, 314, App C 56; ALRC 38: App C 9-10

Will's test for

inconsistencies, uncertainties and other criticisms ALRC 26: 94, 314, App C 56

Research Papers ALRC 26: 23-4; ALRC 38: 13

Res gestae, see 'Hearsay'

Right to silence, see 'Admissions'

Rules, dispensing with ALRC 26: 1025-6: ALRC 38: 246-7

Self-incrimination, see 'Privilege'

Silence, see 'Admissions'

Similar fact evidence, see 'Conduct, accused'

Spousal communication privilege, see 'Privilege'

Statement, fresh in the memory, see 'Evidence, manner of presenting, 'Reviving memory'

Statement, unworn, See 'Evidence, Unsworn'

Survey evidence ALRC 26: 1025-6; ALRC 38: 18(b)

Sworn evidence, See 'Affirmation', 'Oath'

Tape recording, see 'Authentication and identification';

'Documents, secondary evidence or, 'Admissions'

Territory courts ALRC 26: 2; ALRC 38: 3

Trial

nature and purpose of ALRC 26: 54-62; ALRC 38: 33-47

civil ALRC 26: 56-7; ALRC 38: 33-4

criminal

generally ALRC 26: 58-62; ALRC 38: 35-45

balance in ALRC 38: 42

truth, a search for ALRC 26: 54-5; ALRC 38: 31, 38

system

adversary nature

change, arguments for ALRC 26: 11-15

consequences of ALRC 26: 65-7; ALRC 38: 28

generally ALRC 26: 64-7

and juries ALRC 26: 68-9; ALRC 38: 28

Uncertainties, see particular topics

Unfairly, evidence obtained, see 'Discretions, admission

unfairly obtained'

Unworn evidence, see 'Statement, unsworn'

incompetent witness ALRC 26: 595

Judges and counsel ALRC 26: 594

person producing documents ALRC 26: 593

View

as evidence

inconsistencies, uncertainties and other criticisms ALRC 26: 184-5, 309-12, App C 310-3; ALRC 38: App C 45

proposals ALRC 26: 1028; ALRC 38: 243-4

inspection by jury in jury room ALRC 26: 1031; ALRC 38: 243-4

proposal ALRC 26: 1028-31; ALRC 38: 243-4

rationale ALRC 26: 1027

Voir dire

accused's testimony at, use in trial of

inconsistencies and uncertainties ALRC 26: 193; App C 326

proposals ALRC 26: 1041-4; ALRC 38: 245(b), 246

confessions and

inconsistencies and uncertainties ALRC 26: 193; App C 316, 325-6

proposals ALRC 26: 1040-6; ALRC 38: 245-6

confession, truth of

inconsistencies and uncertainties ALRC 26: 193; App C 325

proposals ALRC 26: 1040; ALRC 38: 245(d), 246

confession denied and impropriety alleged

inconsistencies and uncertainties ALRC 26: 193; App C 327

proposals ALRC 26: 1045; ALRC 38: 245-6

exclusionary rules, and

inconsistencies and uncertainties ALRC 26: 189-90 App C 320

proposals ALRC 26: 1036-8; ALRC 245(c), 246

fact in issue a preliminary ALRC 26: 187, App C 315

jury presence

inconsistencies and uncertainties ALRC 26: 188 App C 316-9

proposals ALRC 26: 1032-5; ALRC 36: 245(a), 246

rationale ALRC 26: 1032-5, 1046

right to

inconsistencies and uncertainties ALRC 26: 191 App C 323-4

proposals ALRC 26: 1039; ALRC 38: 245-6

unsworn statement

inconsistencies and uncertainties ALRC 26: 192; App C 322

proposals ALRC 26: 1046; ALRC 245(e), 246

Voluntariness rule, see 'Admissions'

Waiver, see 'Rules, dispensing with'

Warnings, see 'Corroboration'

Without prejudice negotiations, see 'Privilege, negotiations, without prejudice'

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Evidence [1987] ALRC 38

Terms of reference

Participants

Glossary

Summary

The Reference

Issues of uniformity and reform

An Evidence Act

The Evidence Bill - major recommendations

The future

Summary of recommendations

Uniformity and reform

Witnesses - physical and psychological competence

Witnesses - legal competence and compellability

Sworn evidence

Unsworn evidence of accuseds

Manner of presenting evidence

Rules of admissibility - relevance

Rules of admissibility - hearsay evidence

Rules of admissibility - opinion evidence

Rules of admissibility - admissions and confessions

Rules of admissibility - evidence of previous court decisions

Rules of admissibility - evidence of character and conduct

Rules of admissibility - identification evidence

Rules of admissibility - privileges

Rules of admissibility - discretions to exclude

Aspects of proof

Safeguards

Miscellaneous

1. The inquiry

Terms of Reference

Scope of the reference

The significance of the reference

Program of the reference - first stage

Program of the reference - second stage

The future

Footnotes

2. A federal evidence law?

Interim Report conclusions

Discussion of the Interim Report

Conclusion

Footnotes

3. Policy framework

4. Commentary to proposals - introduction

The proposed legislation

The Evidence Bill 1987

Application of the Evidence Bill 1987

Terminology

The commentary to the Evidence Bill

Footnotes

5. Commentary - competence and compellability

Physical and psychological competence

Legal competence and compellability - general

Legal competence and compellability - Heads of State and Parliamentarians

Legal competence and compellability - judges and jurors

Legal competence and compellability - the accused

Legal competence and compellability - person charged with a related offence

Legal competence and compellability - spouse in civil trials