EVIDENCE BILL 2008 Explanatory Memoranda
EVIDENCE BILL 2008
Evidence Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
General
This Bill is the first of two Bills to introduce model uniform evidence law
into Victoria. A further Bill will be introduced at a later date to repeal
relevant parts of the Evidence Act 1958 (Vic) the subject matter of which is
addressed in this Bill, and to make other relevant amendments and
transitional arrangements across the Victorian statute book.
Model uniform evidence law arose out of a comprehensive review of
evidence laws by the Australian Law Reform Commission (ALRC) in the
1980s. The ALRC produced a model Bill (the Model Bill) to provide a
modernised, structured and reasoned approach to the laws of evidence.
The purpose of the Model Bill was to promote and maintain uniformity and
harmonisation of evidence laws across Australian jurisdictions. The Model
Bill clarified evidence laws by partially codifying complex common law
rules and re-writing statutory rules of evidence in a clear and concise manner.
Acts based on the Model Bill were enacted by the Commonwealth and New
South Wales in 1995. The two statutes are largely uniform but do have some
differing provisions. Together these Acts are referred to as the Uniform
Evidence Acts (the UEAs). Tasmania enacted legislation in 2001, largely
mirroring the UEAs, but with some departures.
The operation of the UEAs was reviewed by the ALRC, the New South
Wales Law Reform Commission (NSWLRC) and the Victorian Law
Reform Commission (VLRC). The final report of the three Law Reform
Commissions--Uniform Evidence Law: Report--was produced in December
2005 (the 2005 LRCs' Report). It found that the UEAs were generally
working well, but required some fine-tuning. As a result, a range of
recommendations were contained in the 2005 LRCs' Report and this was
tabled in Parliament in February 2006.
The recommendations have been largely implemented by proposed
amendments to the UEAs and take the form of an amended model uniform
evidence Bill (the Model Uniform Evidence Bill). The Model Uniform
Evidence Bill was approved by the Standing Committee of Attorneys General
in July 2007.
561018 1 BILL LA INTRODUCTION 25/6/2008
A separate report by the VLRC--Implementing the Uniform Evidence Act
(the VLRC Implementation Report)--was tabled on the same day as the 2005
LRCs' Report. The VLRC Implementation Report provides more technical
recommendations for implementing the Model Bill in Victoria.
This Bill is based upon the Model Uniform Evidence Bill.
The policy behind this Bill is that all relevant and reliable evidence that is of
an appropriate probative value should be admissible unless such evidence
would cause unfair prejudice to a party to a court proceeding.
The Bill sets out the rules of evidence that apply to all proceedings in a
relevant court with the aim of ensuring a fair hearing for persons appearing
before the courts.
This Bill is based upon the proposition that the laws of evidence must serve
the trial system and is structured so that the provisions follow the order in
which issues ordinarily arise in trials. It seeks to maximise certainty for the
parties involved in litigation by providing clear rules to enable preparation
for, and conduct of, trials.
This Bill seeks to maximise the ability of parties to produce the most
probative evidence available, whilst retaining fairness, particularly for an
accused in a criminal trial. For this reason, where appropriate, the Bill
differentiates between civil and criminal trials.
Transitional provisions will be contained in a separate Bill.
The Bill is divided into Chapters, Parts and Divisions.
Clause Notes
CHAPTER 1--PRELIMINARY
An introductory note contained in the Bill gives an outline of the Bill. The
Bill sets out the rules of evidence. Generally speaking, the Bill applies to
proceedings in State courts and before other persons or bodies required to
apply the laws of evidence.
Chapter 2 is about how evidence is adduced in proceedings.
Chapter 3 is about admissibility of evidence in proceedings.
Chapter 4 is about proof of matters in proceedings.
Chapter 5 deals with miscellaneous matters.
The Dictionary at the end of the Bill defines terms and expressions used in
the Bill.
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The introductory note sets out related legislation and makes it clear that the
Bill is in most respects uniform with the Evidence Act 1995 of the
Commonwealth (the Commonwealth Act) and the Evidence Act 1995 of New
South Wales (the New South Wales Act).
The introductory note also explains that the UEAs and this Bill are drafted in
identical terms except for minor drafting variations that are required to accord
with the drafting style of each jurisdiction. Major differences in content are
identified by annotations in the text referencing the UEAs.
If one Act contains a provision that is not included in another Act, there is a
gap in the numbering of the other Act in order to maintain consistent
numbering of the other provisions.
The introductory note also indicates that the Evidence Act 2001 of Tasmania
(the Tasmanian Act) largely mirrors the UEAs and this Bill, but with some
departures. For this reason, the differences between this Bill and the
Tasmanian Act are not annotated.
PART 1.1--FORMAL MATTERS
Clause 1 sets out the purpose of the Bill which is to make fresh provision
for the law of evidence that is uniform with Commonwealth and
New South Wales law.
Clause 2 provides for the commencement of the Bill. Clauses 1-3 and the
Dictionary are to commence on the day after the day on which
this Bill receives the Royal Assent. The other provisions are to
commence on a day or days to be proclaimed, or, if not
proclaimed, on 1 January 2010.
Clause 3 provides that the expressions used in the Dictionary at the end of
the Bill have the meanings given to them in the Dictionary.
Clause 3A provides that the Notes in the Bill do not form part of the Bill.
PART 1.2--APPLICATION OF THIS ACT
Clause 4 provides for the Bill to apply to all proceedings in a Victorian
court. These include a proceeding relating to bail, a proceeding
heard in chambers and an interlocutory proceeding of a similar
kind. Whilst sentencing proceedings are also included, the clause
specifies that the Bill applies in such proceedings only if the
court directs the law of evidence to apply and then only in
accordance with the direction.
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There are five Notes to clause 4 and they include the following--
The first Note explains that section 4 of the Commonwealth Act
is different, and it applies to federal court or ACT court
proceedings.
The second Note explains that Victorian court is defined in the
Dictionary and that the Bill will apply not only to courts of law
but also to persons and bodies that, in exercising a function under
the law of the State, are required to apply the laws of evidence.
The fourth Note makes it clear that the Bill preserves provisions
in other Victorian Acts which relieve a court of the obligation to
apply the rules of evidence.
Clauses 5 and 6 contain no substantive provisions. Their inclusion ensures
parity in section numbering with the Commonwealth and New
South Wales Acts.
Clause 7 provides that the Bill binds the Crown.
Clause 8 makes it clear that the Bill does not affect the operation of
provisions of other Acts. The Bill does not override existing
evidentiary provisions in other Acts. Matters relating to relevant
transitional amendments to other Acts will be contained in a
separate Bill.
Clause 9 makes it clear that the Bill will only affect the operation of the
principles and rules of common law or equity relating to evidence
in proceedings to which the Bill applies to the extent that the Bill
expressly provides or by necessary intendment. In particular, the
operation of such principles and rules will be preserved to the
extent that they are not inconsistent with the Bill.
Clause 10 preserves the operation of laws relating to the privileges of any
Australian Parliament.
Clause 11 preserves the general power of courts to control proceedings
before them, except so far as the Bill provides otherwise, either
expressly or by necessary intendment.
CHAPTER 2--ADDUCING EVIDENCE
A Note explains that the Chapter is about ways in which evidence is adduced.
Part 2.1 is about adducing evidence from witnesses.
Part 2.2 is about adducing documentary evidence.
Part 2.3 is about adducing other forms of evidence.
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PART 2.1--WITNESSES
Division 1--Competence and compellability of witnesses
Clause 12 states that, except as provided otherwise by the Bill, everyone is a
competent and compellable witness.
Clause 13 sets out the test for determining a witness's competence to give
sworn and unsworn evidence. See clause 17 for the separate
procedures applying to defendants in criminal proceedings.
The UEAs contain two tests for determining competence, one
each in relation to giving sworn and unsworn evidence. Each test
requires a demonstration of an understanding of the difference
between truth and lies. The 2005 LRCs' Report noted that these
tests have been criticised for being too similar and restrictive.
The Bill clarifies the distinction between sworn and unsworn
evidence and focuses on the ability of the person to act as a
witness (pursuant to recommendations 4-1 and 4-2 of the 2005
LRCs' Report).
Subclause (1) of this Bill provides that all witnesses must satisfy
the test of general competence in subclause (1).
This general test in clause 13 moves away from the "truth and
lies" distinction and focuses instead on the ability of the witness
to comprehend and communicate. The purpose of the test of
general competence is to ensure it is broad enough to enhance
participation of witnesses so that relevant information is put
before the court.
The new general test of competence provides that a person is not
competent to give evidence (either sworn or unsworn) about a
fact if the person lacks the capacity to understand, or to give an
answer that can be understood, to a question about that fact, and
that incapacity cannot be overcome.
A Note to the subclause refers to clause 30 which provides that a
witness may give evidence through an interpreter and clause 31
which applies to deaf or mute witnesses.
Subclause (2) provides that even if the general test of competence
is not satisfied in relation to one fact, a witness may be competent
to give evidence about other facts. For example, a young child
may be able to reply to simple factual questions but not to
questions which require inferences to be drawn.
When a person is competent to give evidence, the following
subclauses set out whether that witness should give sworn or
unsworn evidence.
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Subclause (3) provides that a person is not competent to give
sworn evidence if he or she does not have the capacity to
understand that he or she is under an obligation to give truthful
evidence.
Subclause (4) provides that, subject to the requirements of
subclause (5) being met, a person who is not competent to give
sworn evidence about a fact, may be competent to give unsworn
evidence about the fact. The provision is intended to allow
witnesses such as young children and others (for example, adults
with an intellectual disability) to give unsworn evidence even
though they do not understand concepts such as "truth".
Subclause (5) provides that if a person is not competent to give
sworn evidence because of subclause (3), then the person is
competent to give unsworn evidence when certain criteria are
met. The court is required to inform the person of the importance
of telling the truth, explain how the witness should respond to
questions to which the witness does not know or cannot
remember the answer, and that the witness should not feel
pressured into agreeing with any statements that are untrue.
Subclause (6) provides that a person is presumed to be competent
to give evidence, unless it is proven that he or she is incompetent.
Subclause (7) provides that evidence given by a witness is not
inadmissible merely because, before the witness finishes giving
evidence, that witness dies or is no longer competent to give
evidence.
Subclause (8) provides that, when a court is determining if a
person is competent to give evidence, whether it is sworn or
unsworn, the court may inform itself as it thinks fit, including by
reference to the opinion of an expert.
Clause 14 provides that a person is not compellable to give evidence on a
particular matter if the court is satisfied that substantial cost or
delay would be involved in ensuring that the person would have
the capacity to understand a question about the matter or to give
an answer to it that could be understood.
Clause 15 provides that the Sovereign and others are not compellable to
give evidence. The other persons listed are the Governor-
General, the Governor of a State, the Administrator of a
Territory, a foreign sovereign and the Head of State of a foreign
country. The clause also provides that members of a House of
any Australian Parliament are not compellable to give evidence if
attending court would interfere with attendance at a sitting of that
House, a joint sitting of that Parliament or a meeting of a
committee of that House or Parliament.
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Clause 16 provides that judges or jurors are not competent to give evidence
in the proceeding in which they are acting as judges or jurors.
However, a juror in a proceeding is competent to give evidence
in the proceeding about matters affecting the conduct of the
proceeding. Further, a person who is or was a judge in an
Australian or overseas proceeding is not compellable to give
evidence about that proceeding unless the court gives leave.
Clause 17 provides for rules of competence and compellability for
defendants in criminal proceedings and for any associated
defendant(s) (a defined term). A defendant is not competent to
give evidence as a witness for the prosecution. An associated
defendant is not compellable to give evidence for or against a
defendant in a criminal proceeding, unless the associated
defendant is being tried separately from the defendant. The court
must ensure an associated defendant is aware of this clause if she
or he is being jointly tried with the defendant.
Clause 18 provides that in a criminal proceeding generally, a person who is
the spouse, de facto partner, parent or child of a defendant may
object to being required to give evidence or to give evidence
about a particular communication. If it appears to the court that
this clause may apply to a person, the court must satisfy itself that
the person is aware of the effect of the clause. For an objection
to be upheld, two criteria must be met. First, there must be a
likelihood that harm would or might be caused to the person or to
the relationship between the defendant and the person if the
person gives the evidence. Second, if the nature and extent of
that harm outweighs the desirability of the evidence being given.
The clause sets out five matters that the court must take into
account in determining an objection. They are the nature and
gravity of the offence, the substance, importance, and the weight
likely to be attached to any evidence that the person might give,
whether any other relevant evidence is reasonably available to the
prosecutor, the nature of the relationship and whether the
evidence was received in confidence from the defendant.
If the court finds that the nature and extent of the harm outweighs
the desirability of the witness giving evidence, the witness must
not be required to give the particular evidence in question, or to
give evidence at all.
The clause prohibits a prosecutor from commenting (for example
to a jury) on any objection that is made under this clause, on any
decision of the court in relation to the objection or on the failure
of the person to give evidence.
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Clause 19 contains no substantive provisions. Its inclusion ensures parity in
section numbering with the Commonwealth and New South
Wales Acts.
Clause 20 applies only to criminal proceedings for indictable offences.
It permits certain comment by the judge or any party (other than
the prosecutor) on a failure by a defendant, his or her spouse or
de facto partner or child, to give evidence.
Any such comment, however, (except when made by a
co-defendant) must not suggest that the failure to give evidence
was because the defendant was guilty of the offence concerned,
or believes himself or herself to be guilty of the offence. If such
comment is made by or on behalf of a co-defendant, the judge
may comment on both the failure to give evidence and the co-
defendant's comment.
Division 2--Oaths and affirmations
Clause 21 requires a person to take an oath or make an affirmation before
giving sworn evidence. The requirement does not apply to a
person called merely to produce a document or thing to a court or
who gives unsworn evidence under clause 13.
Clause 22 requires interpreters either to take an oath or make an affirmation.
Oaths or affirmations by interpreters must be made in the forms
set out in Schedule 1 to the Bill, or in a similar form.
An affirmation has the same effect as an oath.
Clause 23 provides that witnesses and interpreters may choose whether to
take an oath or make an affirmation and requires the court to
inform these persons of this choice. If a witness refuses to take
an oath or make an affirmation, or it is not reasonably practicable
for the witness to take the appropriate oath, the court may direct
the witness to make an affirmation.
Clause 24 provides that it is not necessary to use a religious text to take an
oath. An oath is deemed effective whether or not the person who
takes it has, in fact, a religious belief or actually understands the
nature or consequences of the oath.
Clause 24A provides for an alternate oath to be taken, even if the person's
religious or spiritual beliefs do not include a belief in the
existence of a god (a reference to which is not necessary when
taking an oath).
Clause 25 contains no substantive provisions. Its inclusion ensures parity in
section numbering with the Commonwealth and New South
Wales Acts.
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Division 3--General rules about giving evidence
Clause 26 provides that the court can make any order it considers just to
control questioning of a witness, and such orders may include the
way in which witnesses are to be questioned, the use of
documents and things, the order in which parties may question
the witness and the presence and behaviour of any person in
connection with the questioning of a witness.
Clause 27 states the general principle that every party is entitled to question
any witness who gives evidence, unless the Bill provides
otherwise.
Clause 28 sets out the order in which parties are to conduct examination in
chief, cross examination and re-examination, unless the court
directs otherwise.
Clause 29 states the general rule that, subject to the Bill and the control of
the court, it is up to the parties to determine how to question
witnesses.
The customary way in which witnesses are examined is that the
witness answers questions. However, this method of giving
evidence may be unsuitable for certain witnesses, including but
not limited to children, people with an intellectual disability and
people who otherwise may not be accustomed to this style of
communication.
Accordingly, the Bill allows a witness, in certain circumstances,
to give evidence wholly or partially in narrative form, that is, as a
continuous story in his or her own words. The 2005 LRCs'
Report recommended removal of the requirement for a party to
apply for a direction for evidence to be given in this narrative
form (recommendation 5-1). Under this clause, a party may
make an application or the court may make a direction on its own
motion.
Evidence may also be given in the form of charts, summaries or
other explanatory material if it appears to the court that the
material would be likely to aid comprehension of other evidence.
Clause 30 provides that a witness can use an interpreter unless he or she can
speak and understand English sufficiently to understand
questions and give adequate replies.
Clause 31 provides that witnesses who cannot speak or hear adequately can
be questioned, and give evidence, in any appropriate way.
The court is able to give directions on the manner in which such
witnesses may be questioned and the means by which they may
give evidence.
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Clause 32 provides for the use a witness may make of a document to revive
memory about a fact or opinion. This can be done only with the
leave of the court. The section sets out some of the matters the
court may take into account in determining whether to give leave
(for example, whether the witness will be able to recall the fact or
opinion adequately without using the document).
The clause also allows the court to give a witness leave to read
aloud from a document. The court will be required to order that
the relevant part of the document be produced to a party, if that
party requests this.
Clause 33 provides that in a criminal proceeding a police officer may give
evidence in chief for the prosecution by reading or being led
through a written statement he or she previously made.
The written statement must have been made and signed at the
time of or soon after the occurrence of the events to which it
refers and a copy must be given to the person charged or his or
her legal representative a reasonable time before the prosecution
evidence is given.
Clause 34 enables a court, at the request of a party, to direct the production
of specified documents used by a witness to revive his or her
memory out of court. The court may refuse to admit the evidence
if the witness does not comply with the directions of the court.
Clause 35 provides that a party who calls for another party's document is
not automatically required to tender it. Similarly, the party who
produces the document is not automatically entitled to tender it if
the calling party does not tender it.
This clause abolishes the rule in Walker v Walker (1937) 57
CLR 630. Under that rule, the party called on to produce a
document may require the party who called for and inspected the
document to then tender the document. This means that a
document that may otherwise be inadmissible could be admitted
under this rule. This clause removes the automatic right of either
party to tender a document or require the other party to tender a
document.
The clause does not, however, preclude the tendering and
admission of such a document if it is otherwise relevant and
admissible.
Clause 36 enables a court to order a person who is present at proceedings to
give evidence or produce documents if the person could be
compelled by way of subpoena, summons or other order to testify
and produce the documents.
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Division 4--Examination in chief and re-examination
Clause 37 provides that a leading question (a defined term) cannot be put to
a witness in examination in chief or re-examination unless leave
is given or one of the specified circumstances applies.
Such circumstances include where the question relates to a matter
introductory to the evidence of the witness or that is not in
dispute, or is asked for the purpose of obtaining an expert
witness's opinion about a hypothetical statement of facts about
which evidence has or is intended to be given.
Leave is also not required where all the parties to the proceeding
(other than the party examining the witness) are represented by a
lawyer and no objection is made.
Further, unless the court otherwise directs, in civil proceedings,
leading questions may be put to a witness relating to an
investigation, inspection or report the witness made in the course
of carrying out public or official duties.
Subclause (3) enables the court to allow a written statement or
report to be tendered or treated as evidence in chief of its maker.
Clause 38 allows a party, with the leave of the court, to cross-examine its
own witness about--
· evidence the witness has given that is unfavourable to
the party;
· a matter about which the witness may reasonably be
supposed to have knowledge but about which it appears
to the court the witness is not, in examination in chief,
making a genuine attempt to give evidence; or
· whether the witness has made a prior inconsistent
statement.
The clause specifies the manner in which the questioning of an
unfavourable witness is to be conducted and the matters which
the court may take into account in deciding whether or not to
grant leave to a party to cross-examine its own witness.
Subclause (7) provides that a party that is also a witness in the
proceeding can be cross-examined under this clause, where that
proceeding is being conducted in that party's name by an insurer
or another person (or on their behalf).
This clause was included in the UEAs to overcome the decision
of the High Court of Australia in Vocisano v Vocisano (1974)
130 CLR 267.
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Clause 39 sets out the law relating to re-examination by limiting the
questions that may be put to a witness to questions arising out of
evidence given by the witness in cross-examination, unless the
court gives leave for other questions to be put.
Division 5--Cross-examination
Clause 40 prohibits a party from cross-examining a witness who another
party has called in error unless the witness has given evidence in
the proceeding.
Clause 41 enables the court to disallow improper questions put to any
witness during cross-examination. The clause imposes an
obligation on the court to disallow improper questions being put
to a vulnerable witness (or inform the witness it need not be
answered). The clause specifies that for the court to deviate
from this obligation in relation to a vulnerable witness, it must
consider all relevant circumstances of the case and only allow
the question if it concludes that it is necessary for the question
to be put. The onus is on the party putting the question(s) to
demonstrate that the proposed question is necessary.
This clause differs from section 41 of the Model Uniform
Evidence Bill which requires the court to prohibit "disallowable"
questions from being put to any witness.
The adoption, in Victoria, of a two step approach recognises the
capacity of the court to control proceedings by enabling
regulation of the questioning of all witnesses, without unduly
interfering with the trial process. It also acknowledges, however,
that special protection is required for vulnerable witnesses and
the mandatory obligation to consider all relevant circumstances is
designed to facilitate a positive culture of judicial intervention for
these witnesses.
The definition of improper question or improper questioning
in this clause is substantially similar to the definition of a
disallowable question in the Model Uniform Evidence Bill.
Subclause (3) defines an improper question or improper
questioning in a broad manner, and outlines a non-exhaustive list
of the content or style of questions that the court must find to be
improper. They include questions that are misleading or
confusing, unduly annoying, harassing, intimidating, offensive or
repetitive, put in a belittling, insulting or inappropriate manner or
if the only basis of the question is a stereotype. As noted above,
the court has discretion to disallow these questions in relation to
any witness, but must disallow them in relation to vulnerable
witnesses.
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Subclause (4) defines a vulnerable witness. This clause makes
it clear that vulnerable witnesses are people under the age of
18 years and people with a cognitive impairment. This is
intended to prevent argument about whether or not the obligation
under subclause (2) applies to such people. However, the
subclause also sets out other conditions or characteristics that
may cause people to be categorised as vulnerable. These factors
include the--
· age (including, for example, advanced age) and cultural
background of the witness;
· mental or physical capacity (for example, where it does
not necessarily constitute cognitive impairment) of the
witness; and
· context of the case or the context in which the questions
are put, including the relationship between the witness
and any party to the proceeding.
The subclause is intended to minimise the need for argument
about whether a witness is vulnerable. In some cases the
vulnerability will be obvious, but in others, it may be the
circumstances of the case that cause the witness to be vulnerable.
Subclause (5) provides that a question is not disallowable merely
because it challenges the truthfulness of the witness or the
consistency or accuracy of any statements made by the witness,
or the subject of the questions is considered by the witness to be
distasteful or private.
Subclause (6) enables a party to object to an improper question
put to a witness. However, the absence of such an objection does
not remove the court's obligation to monitor questions.
Subclause (7) makes it clear that the relevant duties apply
whether or not an objection is raised. This subclause is intended
to ensure that the court takes an active role in monitoring
questions and ensuring the appropriate regulation of questions in
cross-examination.
As specified in subclause (8) a failure by the court to disallow a
question under clause 41 will not affect the admissibility of the
witness's answer. The purpose of this clause is not to diminish
the duty on the court to effectively regulate improper questions.
Rather, it is designed to ensure that such a failure will not render
the evidence elicited inadmissible, and therefore the proceeding
subject to appeal.
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The first Note to clause 41 is a cross reference to clause 195
which prohibits the publication of disallowed questions unless
the express permission of the court has been obtained.
The second Note to clause 41 stipulates (as explained above) that
this clause differs from the Model Uniform Evidence Bill.
Clause 42 permits a party to put a leading question (a defined term) to a
witness in cross-examination, unless the court disallows the
question or directs the witness not to answer it. In deciding
whether to disallow a question or give a direction the court is to
take into account, among other things, the witness's age, any
mental, intellectual or physical disability that may affect the
witness's answer and the extent, if any, to which the witness or
the witness' evidence is sympathetic to the cross-examiner.
The clause stipulates, however, that the court must disallow a
question or direct the witness not to answer it if the court is
satisfied that the facts would be better ascertained if leading
questions are not used.
Clause 43 sets out the manner in which prior inconsistent statements of a
witness may be put to the witness in cross-examination.
Clause 44 sets out the only manner in which a witness may be cross-
examined about a prior statement made by some other person.
Clause 45 provides for the production and examination of a document
during cross-examination about an alleged prior inconsistent
statement made by a witness or a previous representation made
by a person other than a witness.
Clause 46 enables the court to give leave to a party to recall a witness to be
questioned about a matter if another party adduces evidence that
contradicts or relates to evidence given by the witness, the
substance of which was not put to the witness by that other party.
PART 2.2--DOCUMENTS
Clause 47 defines document in question for the purposes of Part 2.2 of the
Bill. It also provides that a document is to be taken to be a copy
of a document, even though it is not an exact copy, if it is
identical in all relevant respects.
Clause 48 provides that evidence of the contents of a document can be
adduced by tendering the document or by any one or more of the
following methods--
· adducing evidence of an admission made by another
party about its contents;
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· tendering a copy of the document produced by a device
(for example, a photocopier or a word processor) that
reproduces the contents of documents;
· if the content of the document is not in visible form
(for example, a tape-recording) or is in a code
(for example, shorthand notes), tendering a transcript;
· if the document is an article or thing on or in which
information is stored in such a way that it cannot be
used unless a device is used to retrieve, produce or
collate it, tendering a document produced by the device
(for example, computer output or a document produced
by an optical laser disk reader);
· tendering a business record that is an extract from, or a
summary or copy of, the document;
· if the document is a public document, tendering an
official printed copy of the document.
The clause provides that a party to whom a document is not
available may lead evidence of the contents of the document by
tendering a copy, extract or a summary of the document or
adducing evidence of the contents of the document from a
witness.
Clause 49 provides for proof of documents in foreign countries.
Clause 50 enables a party to apply to a court for a direction that he or she
may adduce evidence of the contents of two or more documents
in the form of a summary if it would not otherwise be possible to
conveniently examine the evidence because of the volume or
complexity of the documents in question.
The court may only make such a direction if the applicant has
served on each other party a copy of the summary disclosing the
name and address of the person who prepared it, and has given
each other party a reasonable opportunity to examine or copy the
summarised documents.
Clause 51 abolishes the original document rule which provides that the
contents of a document, except in certain limited circumstances,
must be proved by production of the original document.
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PART 2.3--OTHER EVIDENCE
Clause 52 provides that the Bill (except Part 2.3) will not affect an
Australian law or rule of practice so far as it permits evidence to
be adduced in a way other than by witnesses giving evidence or
documents being tendered in evidence.
Clause 53 enables a judge, on application, to order that a demonstration,
experiment or inspection be held. It sets out some of the matters
the judge should take into account in deciding whether to make
such an order. These include whether the parties will be present
and whether a demonstration of an event will properly reproduce
the event.
Clause 54 makes it clear that the court (including the jury if there is one)
may draw any reasonable inference from what it sees, hears or
otherwise notices at a demonstration, experiment or inspection.
CHAPTER 3--ADMISSIBILITY OF EVIDENCE
An introductory note explains that the Chapter is about whether evidence
adduced in a proceeding is admissible.
Part 3.1 sets out the general inclusionary rule that relevant evidence is
admissible.
Part 3.2 is about the exclusion of hearsay evidence, and exceptions to the
hearsay rule.
Part 3.3 is about exclusion of opinion evidence, and exceptions to the opinion
rule.
Part 3.4 is about admissions and the extent to which they are admissible as
exceptions to the hearsay rule and the opinion rule.
Part 3.5 is about exclusion of certain evidence of judgments and convictions.
Part 3.6 is about exclusion of evidence of tendency or coincidence, and
exceptions to the tendency rule and the coincidence rule.
Part 3.7 is about exclusion of evidence relevant only to credibility, and
exceptions to the credibility rule.
Part 3.8 is about character evidence and the extent to which it is admissible as
an exception to the hearsay rule, the opinion rule, the tendency rule and the
credibility rule.
Part 3.9 is about the requirements that must be satisfied before identification
evidence is admissible.
Part 3.10 is about the various categories of privilege that may prevent
evidence being adduced.
16
Part 3.11 sets out the discretionary and mandatory exclusions that may apply
to evidence even if it would otherwise be admissible.
The diagram contained in the introductory note sets out how Chapter 3
applies to particular evidence. Use of the diagram may assist in applying
Chapter 3 in a logical method to determine whether evidence is admissible.
PART 3.1--RELEVANCE
Clause 55 sets out what is relevant evidence. Under the clause, evidence is
relevant if it could rationally affect (whether directly or
indirectly) the assessment of the probability of the existence of a
fact in issue.
The clause makes it clear that evidence is not to be deemed
irrelevant (and hence inadmissible under clause 56) because it
relates only to the credibility of a witness, the admissibility of
other evidence or a failure to adduce evidence.
Clause 56 concerns the admissibility of evidence. Relevant evidence is
admissible except as otherwise provided by the Bill.
Irrelevant evidence is not admissible.
Clause 57 enables a court to admit evidence provisionally even if its
relevance is not immediately apparent. The court may find the
evidence is prima facie relevant evidence if it is reasonably open
to find the evidence relevant based on the evidence alone or on
the basis it would be reasonably open to do so once some other
further evidence is subsequently admitted. For instance, a knife
could be accepted as provisionally relevant, subject to proof that
it was used in a murder.
Clause 58 enables a court to examine a document or thing for the purpose of
determining its relevance and to draw any reasonable inference
from it.
PART 3.2--HEARSAY
Division 1--The hearsay rule
This Part sets out the exclusionary rule for hearsay evidence and exceptions
to that rule.
Clause 59 sets out the general exclusionary rule for hearsay evidence
("the hearsay rule"). Under subclause (1), the rule prevents the
admission of evidence of a previous representation made by a
person to prove the existence of a fact, that the person intended to
assert (or it can be reasonably supposed the person intended to
17
assert), by the representation. Subclause (2) defines this to be an
"asserted fact" for the purposes of this Division.
The 2005 LRCs' Report recommended an amendment to
section 59 of the UEAs by the insertion of the words "it can
reasonably be supposed that" after "a fact that"
(recommendation 7-1). This amendment (along with a new
subclause (2A)) is intended to provide further guidance on the
definition of hearsay evidence under this Division and foreclose
the prospect of courts adopting a different approach to
determining the meaning of "intention", such as the approaches
explored in R v Hannes (2000) 158 FLR 359.
Subclause (2A) clarifies what the court should consider in
determining the meaning of "intention" (pursuant to
recommendation 7-1 of the 2005 LRCs' Report). It provides
the test for determining the intention of the maker. Under this
subclause, when determining whether a person intended to assert
the existence of facts contained in a previous representation, the
test to be applied is what a person in the position of maker of the
representation can reasonably be supposed to have intended,
having regard to the representation and the circumstances in
which the representation was made.
The second Note to clause 59 sets out specific exceptions to the
hearsay rule. It refers to the sections in the Bill that set out when
evidence is admissible (even though it is hearsay evidence).
Examples set out under clause 59 illustrate how the clause is
intended to operate.
Clause 60 contains an exception to the hearsay rule where the evidence
(which is otherwise hearsay) is relevant for a non-hearsay
purpose. Subclause (1) provides that such evidence is not
captured by the hearsay rule.
The 2005 LRCs' Report recommended that the reference in
section 60 of the UEAs to "the fact intended to be asserted by
the representation" be replaced with "an asserted fact"
(recommendation 7-2). The words "an asserted fact" are
consistent with the term used in clause 59.
The 2005 LRCs' Report also recommended the introduction of
subclauses (2) and (3) (recommendations 7-2 and 10-2).
Subclause (2) clarifies that clause 60 operates to permit evidence
admitted for a non-hearsay purpose to then be used to prove the
facts asserted in the representation, whether or not the evidence is
first-hand or more remote hearsay.
18
The Note to subclause (2) provides that this subclause is a
response to the decision of the High Court of Australia in
Lee v The Queen (1998) 195 CLR 594.
Subclause (3) inserts a safeguard, to ensure that evidence of
admissions in criminal proceedings that is not first-hand is
excluded from the scope of clause 60.
The Note to subclause (3) provides that evidence of an admission
might still be admissible under clause 81 of the Bill if it is "first
hand" hearsay. The Note makes a cross reference to clause 82
which deals with the exclusion of evidence of admissions that is
not first hand.
Clause 61 makes it clear that nothing in Part 3.2 enables the use of a
previous representation to prove an asserted fact if the
representation was made by a person who at the time it was made
was not competent to give evidence of the fact. The clause
makes it clear that competence is to be assessed in accordance
with the test in clause 13.
Subclause (2) makes it clear that the limitation in clause 61 does
not apply to a person's contemporaneous representations about
the person's health, feelings, sensations, intentions, knowledge or
state of mind.
The Note to subclause (2) refers to clause 66A for further
information regarding admissibility of such contemporaneous
statements.
Division 2--"First-hand" hearsay
Clause 62 provides that in Division 2, previous representation (a defined
term) refers only to a representation made by a person who had,
or might reasonably be supposed to have had, personal
knowledge of the fact asserted in the representation, other than
from a representation made by some other person about the
asserted fact. Such a representation is referred to as "first-hand"
hearsay.
Subclause (2) defines personal knowledge as based on something
personally seen, heard or otherwise perceived. Subclause (3)
refers to clause 66A, which also contains a reference to
knowledge and ensures that all previous representations covered
by clause 66A are considered "first-hand" hearsay.
Subclauses (2) and (3) reflect recommendation 8-5 of the 2005
LRCs' Report.
19
Clause 63 provides an exception to the hearsay rule in civil proceedings
where the maker of a "first-hand" hearsay representation is not
available to give evidence about an asserted fact.
In these circumstances, oral evidence of the representation may
be given by a person who witnessed it. Alternatively, a
document containing the representation, or another representation
reasonably necessary to understand it, may be admitted.
The Notes to clause 63 explain that clause 67 contains notice
requirements in relation to this clause, and that clause 4 of Part 2
of the Dictionary is about availability of persons.
Clause 64 provides for two exceptions to the hearsay rule in civil
proceedings where the maker of the specified "first-hand"
hearsay representation is available to give evidence.
Firstly, where it would cause undue expense or undue delay or
it would not be reasonably practicable to call the maker of the
representation to give evidence, oral evidence of the
representation may be given by a person who witnessed it.
Secondly, a document containing the representation, or any other
representation reasonably necessary to understand it, may be
admitted.
The clause does not require that the occurrence of the asserted
fact be fresh in the memory of the person who made the
representation at the time that the representation is made.
The 2005 LRCs' Report found that in practice, the requirement of
freshness in memory is not an important indicator of evidentiary
reliability (recommendation 8-1).
Clause 65 provides for exceptions to the hearsay rule in criminal
proceedings where the maker of the "first-hand" hearsay
representation is not available to give evidence.
Subclause (1) provides that the clause applies where a person
who made a previous representation is not available to give
evidence about an asserted fact. Subclause (2) sets out some
specific exceptions to the hearsay rule in such situations.
The specific exceptions under subclause (2) are where the
representation was made--
· under a duty to make that representation; or
· when or shortly after the asserted fact occurred and in
circumstances where it is unlikely that the
representation is a fabrication; or
20
· in circumstances that made it highly probable that the
representation was reliable; or
· against the interests of the maker at the time the
representation was made and it was made in
circumstances that make it likely it is reliable.
Subclause (7) provides that a representation is to be taken to be
against the maker's interest if it tends to damage the reputation of
the maker, incriminate the maker or show that the maker is liable
in an action for damages.
The Note to subclause (2) sets out that clause 67 contains notice
requirements in relation to this subclause. Under clause 67, such
notices are to be given in accordance with any regulations or
rules of the court made for the purposes of this clause.
Subclause (2)(d) is in accordance with the 2005 LRCs' Report
finding that admissions against interest cannot automatically be
assumed to be reliable (recommendation 8-3). For example,
where the person who made the statement is an accomplice or
co-accused, he or she may be motivated to downplay the extent
of his or her involvement in relevant events and to emphasise the
culpability of the other. There might be reason to suspect that an
accomplice or co-accused would be more inclined to take such a
course where, for example, they have immunity from
prosecution. Where the accomplice gains immunity from
prosecution, the fact that the representation is against self-interest
is no longer a reliable safeguard or indicator of reliability.
Accordingly, this subclause contains a requirement that for such
admissions to be admitted, they must also be found "to be likely
to be reliable". The provision is not restricted to accomplices and
co-accused, as statements against interest may arise in other
situations.
Subclause (3) contains an exception which enables evidence to be
given of a representation made in the course of giving evidence
in an Australian or overseas proceeding if, in that proceeding the
defendant affected has cross-examined, or had a reasonable
opportunity to cross-examine, the person who made the
representation.
The Note to subclause (3) sets out that clause 67 contains notice
requirements in relation to this subclause.
Subclause (4) sets out that where such evidence (pursuant to
subclause (3)) is admitted in a criminal proceeding involving
more than one defendant, it cannot be used against a defendant
who did not (or did not have reasonable opportunity to) cross-
21
examine the person about the representation. Reasonable
opportunity is defined in subclause (5).
Subclause (6) sets out that evidence of such a representation
(pursuant to subclause (3)) may be adduced by producing a
transcript or recording that is authenticated in the specified way.
Subclauses (8) and (9) apply to evidence adduced by a defendant.
Subclause (8) provides an exception that enables a defendant to
adduce evidence of a representation from a person who witnessed
it or to tender a document containing the representation, or
another representation reasonably necessary to understand it.
Subclause (9) provides that if evidence of that kind (pursuant to
subclause (8)) has been adduced by a defendant about a particular
matter, the prosecution or another defendant may adduce
evidence of another previous representation about the matter.
The Note to clause 65 explains that clause 4 of Part 2 of the
Dictionary is about availability of persons.
Clause 66 provides for exceptions to the hearsay rule in criminal
proceedings where the maker of the "first-hand" hearsay
representation is available to give evidence.
Subclause (1) provides that the clause applies where a person
who made a previous representation is available to give evidence
about an asserted fact.
Subclause (2) sets out that if the maker has been called or is to be
called to give evidence, evidence of the representation may be
given by the maker, or by someone else who witnessed the
representation, if, when the representation was made, the
occurrence of the asserted fact was fresh in the memory of the
maker.
Subclause (2A) sets out factors the court may take into account in
determining the "freshness" of the memory. This may be
determined by a wide range of factors in addition to the temporal
relationship between the occurrence of the asserted fact and the
making of the representation. The nature of the event and the age
and health of the person are included as examples of the
considerations which may be relevant to an assessment of the
"freshness" of the memory. This is in accordance with the 2005
LRCs' Report (recommendation 8-4).
The Note to subclause (2A) sets out that subclause (2A) is a
response to Graham v The Queen (1998) 195 CLR 606.
22
Subclause (3) provides that if a representation was made for the
purpose of indicating the evidence that the maker would be able
to give in a proceeding, the exception to the hearsay rule is not to
apply to evidence adduced by the prosecutor unless the
representation concerns the identity of a person, place or thing.
Subclause (4) provides that a document containing a
representation (pursuant to subclause (2)) must not be tendered
before the conclusion of the examination in chief of the person
who made the representation, unless the court gives leave.
Clause 66A contains an exception to the hearsay rule for contemporaneous
statements about a person's health, feelings, sensations, intention,
knowledge or state of mind.
The clause is limited to first-hand hearsay and enables the court
to assess the reliability of the person who had personal
knowledge of the asserted fact. This is in accordance with the
2005 LRCs' Report finding that this exception is only justified in
relation to first-hand hearsay and it should not apply to second-
hand and more remote forms of hearsay (recommendation 8-5).
Clause 67 sets out the notice requirements for a party seeking to adduce
hearsay evidence in accordance with Part 3.2.
Clause 68 enables a party in civil proceedings to object to the tender of
hearsay evidence where the maker of the representation is
available, but has not been called to give evidence. Objections
must be made in accordance with the stipulated notice and other
requirements. If the objection is unreasonable the court may
order that the party pay the costs incurred in relation to the
objection and in calling the maker to give evidence.
The Note to clause 68 sets out a difference between this Bill and
the Commonwealth Act due to the different way Victorian courts
ascertain costs.
Division 3--Other exceptions to the hearsay rule
Clause 69 provides an exception to the hearsay rule for certain previous
representations in business records. The exception will apply
only if the representation was made or recorded in the course of
or for the purposes of a business and was made by a person who
had or might reasonably be supposed to have had personal
knowledge of the fact asserted by the representation or was made
on the basis of information supplied (directly or indirectly) by a
person who might reasonably be supposed to have or have had
such knowledge.
23
A further exception is provided for evidence that tends to prove
that there is no record in a business record keeping system of the
happening of an event normally recorded in the system.
The Notes to clause 69 set out other relevant sections about
business records.
Clause 70 provides that in certain circumstances, the hearsay rule does not
apply to tags or labels attached to objects or documents.
The Note to clause 70 sets out that the Commonwealth Act has
an additional subsection relating to customs and excise
prosecutions.
Clause 71 provides an exception to the hearsay rule for the use of
representations as to the identity of the sender, date and time of
sending and destination of the recipient in documents recording
an electronic communication. This clause provides a broad and
flexible definition of the technologies which fall within the
exception to the hearsay rule for telecommunications.
This definition is not device-specific or method-specific and
embraces all modern electronic technologies. It is also intended
to be sufficiently broad to capture future technologies.
The Notes refer to Division 3 of Part 4.3 which contains
presumptions about electronic communications, the
Commonwealth Act which has a wider application in relation to
Commonwealth records and that electronic communication is a
defined term.
This clause accords with the 2005 LRCs' Report
(recommendation 6-2).
Clause 72 provides an exception to the hearsay rule for evidence of a
representation about the existence or non-existence, or the
content, of the traditional laws and customs of an Aboriginal or
Torres Strait Islander group.
This exception is in accordance with the 2005 LRCs' Report
(recommendation 19-1). It found that the UEAs should be
amended to make the hearsay rule more responsive to Aboriginal
and Torres Strait Islander oral tradition. The laws of evidence
have treated information passed on orally as a second class form
of knowledge. In Australian Indigenous societies, the value
given to information about traditional law and custom passed on
via oral tradition is determined by considering factors such as the
actual transmission, the source of the information, and the person
to whom it has been passed. This clause does not treat orally
transmitted evidence of traditional law and custom as prima facie
24
inadmissible, as this is the form by which law and custom are
maintained under Indigenous traditions.
The intention of this clause is to make it easier for evidence of
traditional law and customs to be adduced where relevant and
appropriate. The exception shifts the focus away from whether
there is a technical breach of the hearsay rule, to whether the
particular evidence is reliable. Factors relevant to reliability or
weight will include the source of the representation, the persons
to whom it has been transmitted, and the circumstances in which
it was transmitted.
The requirements of relevance in clauses 55 and 56 may operate
to exclude representations which do not have sufficient
indications of reliability. Reliability can be enhanced through
use of judicial powers to control proceedings, to create a
culturally appropriate context for the giving of evidence
regarding the existence or content of particular traditional laws
and customs.
The Note to clause 72 refers to the exception for
contemporaneous statements about a person's health in
clause 66A.
Clause 73 provides an exception to the hearsay rule for reputation in
relation to evidence about marriage, cohabitation, age, family
history and family relationship. The provision is intended to
reflect and rationalise existing common law rules in this respect.
The clause provides that this exception does not apply to
evidence adduced in a criminal proceeding unless it tends to
contradict such evidence that has been admitted and, in the case
of the defendant, reasonable notice has been given by the
defendant.
Clause 74 provides a similar exception (to clause 73) to the hearsay rule for
reputation as to public or general rights. In a criminal
proceeding, the exception does not apply to evidence adduced by
a prosecutor unless it tends to contradict such evidence that has
been admitted.
Clause 75 provides an exception to the hearsay rule for evidence adduced in
interlocutory proceedings if the party who adduces it also
adduces evidence of its source.
25
PART 3.3--OPINION
Clause 76 states the general exclusionary rule that opinion evidence is not
admissible to prove a fact asserted by the opinion ("the opinion
rule").
The Second Note to clause 76 sets out a list of the specific
exceptions to the opinion rule as contained in other sections of
the Bill.
Examples set out under clause 76 illustrate how the clause is
intended to operate.
Clause 77 provides that the opinion rule does not apply to evidence that is
admitted because it is relevant on some basis other than proof of
the fact asserted by the opinion.
Clause 78 provides an exception to the opinion rule for lay opinions.
It permits opinion evidence if it is based on the person's own
perception of an event and evidence of the opinion is necessary to
obtain an adequate understanding of the person's perception of
the event.
Clause 78A provides an exception to the opinion rule for evidence of an
opinion expressed by a member of an Aboriginal or Torres Strait
Islander group about the existence or non-existence, or the
content, of the traditional laws and customs of the group.
This clause is in accordance with the 2005 LRCs' Report
(recommendation 19-2). The 2005 LRCs' Report recommended
that a member of an Aboriginal or Torres Strait Islander group
(the group) should not have to prove that he or she has
specialised knowledge based on training, study or experience
before being able to give opinion evidence about the traditional
law and custom of his or her own group.
People who are not members of the group will have their
competence to give such evidence determined under clause 79,
based on their specialised knowledge based on training, study or
experience.
The requirement of relevance in clauses 55 and 56 may operate to
exclude opinions which do not have sufficient indications of
reliability, for example where the person is a member of the
group but has had little or no contact with that group. Reliability
can be enhanced through use of judicial powers to control
proceedings, to create a culturally appropriate context for the
giving of evidence regarding the existence or content of
particular traditional laws and customs.
26
Clause 79 provides exceptions to the opinion rule for evidence that is
wholly or substantially based on specialised knowledge.
Subclause (1) sets out an exception allowing a person with
specialised knowledge based on training, study or experience to
give an opinion that is wholly or substantially based on that
knowledge. It is not necessary for the person to be formally
qualified. Relevant experience will suffice.
Subclause (2) sets out specific considerations in relation to
specialised knowledge relating to child behaviour and
development, particularly in cases of sexual assault.
This is in accordance with the 2005 LRCs' Report
(recommendation 9-1). The 2005 LRCs' Report found that
specialist knowledge on the development and behaviour of
children can be relevant to a range of matters in legal
proceedings, including testimonial capacity, the credibility of a
child witness, the beliefs and perceptions held by a child, and the
reasonableness of those beliefs and perceptions. Such evidence
can, in certain cases such as child sexual assault matters, be
important in assisting the court to assess other evidence or to
address misconceived notions about children and their behaviour.
However, the Report found that courts show a continuing
reluctance in many cases to admit this type of evidence.
The inclusion of subclause (2) makes it clear that this particular
type of specialised knowledge is admissible.
Clause 80 abolishes the common law rules known as the "ultimate issue
rule" and the "common knowledge rule".
The "ultimate issue rule" prevents a witness from expressing an
opinion on an issue to be decided by the court. The "common
knowledge rule" excludes expert opinion evidence on matters of
common knowledge.
PART 3.4--ADMISSIONS
This Part sets out exceptions to the hearsay and opinion rules relating to
admissions. An admission (a defined term) is not rendered inadmissible by
the hearsay or opinion rules.
Clause 81 provides an exception to the hearsay and opinion rules for
evidence of an admission. A similar exception is provided for
evidence of a representation made at or about the time of the
admission that is reasonably necessary to understand the
admission.
27
The Note to clause 81 sets out the specific exclusionary rules
relating to admissions that are contained in other clauses in the
Bill.
An example set out under clause 81 illustrates how the clause is
intended to operate.
Clause 82 qualifies the exception created by clause 81. The hearsay rule
will apply to evidence of an admission unless the evidence is
given orally by a person who witnessed the admission or the
evidence is a document in which the admission is made.
The Note to clause 82 provides for exclusion of evidence of
admissions that is not first-hand.
The Note clarifies that clause 60, which contains an exception to
the hearsay rule for evidence that is admitted for a non-hearsay
purpose, does not apply to evidence of an admission in a criminal
proceeding.
Clause 83 restricts the use that can be made of admissions as against third
parties. Under this clause, the hearsay rule and the opinion rule
apply so that evidence of an admission cannot be used in relation
to the case of a third party unless that third party consents to the
entire evidence being used. Consent cannot be given in respect
of part only of the evidence. A third party is a party to a
proceeding who did not make the admission or adduce the
evidence.
Clause 84 provides that if the party against whom evidence of an admission
is being led raises an issue in the proceeding about whether the
admission was influenced by violent, oppressive, inhuman or
degrading conduct, or by a threat of such conduct, evidence of
the admission is not admissible unless the court is satisfied that
the admission was not influenced by that conduct or by a threat
of that conduct.
Clause 85 relates to admissions by defendants in a criminal proceeding.
Subclause (1) sets out that the relevant admissions under the
clause are either--
· an admission made to or in the presence of an
investigating official (a defined term), who at that time
was performing functions in connection with the
investigation of the commission, or possible
commission, of an offence; or
28
· an admission made as a result of an act of another
person who was, and who the defendant knew or
reasonably believed to be, capable of influencing the
decision whether a prosecution should be brought or
continued.
In comparison, section 85 of the UEAs is limited to an admission
made "in the course of questioning".
The Note to subclause (1) makes it clear that this clause
addresses the interpretation of the term "in the course of official
questioning" expressed by the majority in the decision of the
High Court of Australia in Kelly v The Queen (2004) 218
CLR 216. The majority held that the phrase "in the course of
official questioning" in a particular Act "marks out a period of
time running from when questioning commenced to when it
ceased". This is a narrow interpretation.
The requirements in clause 85 are designed to place minimal
administrative or resource demands on the police (for instance
there is no general duty to ensure that admissions are made in
circumstances that are unlikely to adversely affect the truth of the
admission). However, it is simultaneously intended to ensure
that the prosecution can demonstrate reliability in cases where the
truth of an admission may be in doubt due to the circumstances in
which it was made.
Clause 85 is designed to be broad enough to cover the period
where the investigating official is performing functions in
connection with the investigation of the commission, or possible
commission, of an offence. Accordingly, any admissions made
to police during this time will fall within the scope of clause 85.
The breadth of this provision is consistent with the traditional
caution with which the law treats admissions made to police
officers and to other persons in authority.
It should be noted that this clause departs from the 2005 LRCs'
Report (recommendation 10-1). The clause goes further than the
recommendation in two respects.
First, subclause (1)(b) is intended to make it clear that covert
operatives are not within the ambit of the provision.
The possibility that covert operatives could be covered by the
clause was considered by Callaway JA in the Victorian Court of
Appeal unreported decision R v Tofilau [2006] VSCA 40.
29
Second, the term "official questioning" has been removed from
other parts of the Bill so as to avoid any uncertainty. This has
occurred in clauses 89, 139, 165 and the Dictionary.
Clause 86 makes inadmissible in a criminal proceeding any document
(other than a sound or video recording, or transcript of such a
recording) purporting to be a record of interview by an
investigating official with a defendant unless the defendant
acknowledged the document as a true record by signing or
otherwise marking it.
The purpose of this clause is to limit the circumstances in which
documentary evidence, such as a statement of evidence
containing an admission, is used to prove the contents of the
statement.
However, it does not in any way limit the admissibility of oral
evidence regarding any such admission, where this evidence
comes within an exception to the hearsay rule. Nor does it affect
current requirements in relation to the taping, for example, of
"records of interview". Furthermore, where such documentary
evidence is admissible pursuant to other Acts, this clause will not
apply. For example, in relation to summary offences,
documentary evidence containing admissions, without a
defendant's acknowledgement, may form part of the brief of
evidence against a defendant. Clause 5 of Schedule 2 of the
Magistrates' Court Act 1989 provides that in certain
circumstances such evidence is to be treated as if its contents are
a record of evidence given orally. This clause is not intended to
affect the operation of that provision.
Clause 87 sets out the circumstances in which a representation made by
another person is treated as being an admission made by a party.
A representation made by another person is taken also to have
been made by a party if--
· the person had authority to make statements on behalf
of the party;
· it was made by an employee or agent about a matter
within the scope of the person's employment or
authority;
· it was made in furtherance of a common purpose with
the party.
30
For the purposes of the clause, an exception to the hearsay rule is
provided for evidence of a previous representation made by a
person about his or her employment or authority to make
statements or act on behalf of a party.
Clause 88 provides that to determine whether evidence of an admission is
admissible, a person will be deemed to have made an admission
if it is reasonably open to find that she or he so made the
admission.
Clause 89 prohibits unfavourable inferences (including an inference of
consciousness of guilt or an inference relevant to a party's
credibility) being drawn in a criminal proceeding from a failure
by a person to answer a question, or respond to a representation,
from an investigating official performing functions in connection
with the investigation of the commission, or possible
commission, of an offence.
If the only use that can be made of the evidence of the silence
would be to draw such an unfavourable inference, the evidence of
the silence itself is inadmissible for that purpose. The application
of this clause is limited to the evidence of the silence. A recent
Victorian decision regarding the prohibition on the admissibility
of silence in the course of selective answering is the unreported
Victorian Court of Appeal decision R v Barrett [2007] VSCA 95
(17 May 2007).
Further, the clause is not intended to prevent the drawing of
adverse inferences from the giving of inconsistent accounts.
The clause does not prevent use of the evidence to prove that the
party or other person refused to answer the question or respond to
the representation if the refusal is a fact in issue in the
proceedings.
Clause 90 provides that, if in a criminal proceeding, 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 the admission at
all, or admit the admission, but limit its use.
The Note to clause 90 makes it clear that the admission may
nevertheless be excluded under other relevant discretions
(contained in Part 3.11).
31
PART 3.5--EVIDENCE OF JUDGMENTS AND
CONVICTIONS
This Part abolishes the rule known as the rule in Hollington v
Hewthorn [1943] KB 587. In that case, evidence of a conviction was held to
be inadmissible in civil proceedings to prove the facts on which it was based.
Clause 91 provides that evidence of a decision or a finding of fact in a
proceeding is not admissible to prove a fact in issue in the
proceeding. The clause makes it clear that once such evidence is
prohibited (under this Part) from proving a fact in issue, even if it
is admitted for some other relevant purpose, it cannot then be
used in contravention of this clause.
The note to clause 91 refers to clause 178 that provides for
certificate evidence of decisions.
Clause 92 provides two exceptions to the basic rule set out in clause 91.
The first exception provides that evidence of a grant of probate or
letters of administration to prove death, date of death or the due
execution of a will is admissible.
The second exception provides for the admissibility of evidence
in civil proceedings of convictions of a party or a person through
or under whom a party claims (not being convictions under
review or that have been quashed or set aside or in respect of
which a pardon has been given).
Clause 93 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.
PART 3.6--TENDENCY AND COINCIDENCE
This Part provides for the admissibility of evidence relating to conduct,
reputation, character and tendency of parties and witnesses, that is relevant to
a fact in issue in the proceedings. Clause 97 sets out the "tendency rule" and
clause 98 sets out the "coincidence rule".
The Part does not apply if a matter is a fact in issue or relates only to the
credibility of witnesses. Credibility evidence is dealt with in Part 3.7.
Part 3.8 sets out rules relating to evidence of the character of a defendant in a
criminal proceeding.
Clause 94 provides that Part 3.6 does not apply to evidence that relates only
to the credibility of a witness, evidence in a proceeding so far as
it relates to bail or sentencing or to evidence of character,
reputation, conduct or tendency of a person that is a fact in issue
in the proceeding.
32
Clause 95 provides that if evidence is deemed inadmissible for a prohibited
purpose (as "tendency" or "coincidence"), even if it is relevant
for another purpose (and so may be admissible) it must not be
used for a prohibited purpose.
For example, evidence that may not be subject to the tendency
rule includes evidence that may be relevant to a fact in issue,
where the relevance is not dependent on the drawing of an
inference of tendency from the evidence. For example, evidence
of prior conduct revealing a motive for the crime charged or
evidence relevant to a person's state of mind. If such evidence is
admitted, it cannot then be used for a tendency purpose.
Clause 96 provides that a reference in Part 3.6 to the doing of an act
includes a reference to a failure to do the act.
Clause 97 sets out the exclusionary rule for tendency evidence.
The rule ("the tendency rule") deals with the admission of
evidence of a person's character, reputation, conduct or tendency
where the evidence is being admitted to prove that the person has
or had a tendency to act in a particular way or to have a particular
state of mind.
There is an exception to the tendency rule. Tendency evidence
can be admitted under this clause if appropriate notice is given
(or the court dispenses with the notice requirement under
clause 100) and the court finds that the evidence has significant
probative value.
Under clause 97, the court is to admit the evidence if it has
significant probative value. Probative value is a defined term.
The probative value of evidence means the extent to which the
evidence could rationally affect the assessment of the probability
of the existence of a fact in issue.
Once the evidence is found to have probative value, the exception
applies where the court thinks the probative value is significant.
Although the term "significant" is not defined, it is not intended
to mean "substantial". The 2005 LRCs' Report concluded that
the term is well defined in common law, and means something
more than mere relevance, but less than a substantial degree of
relevance. Whether the probative value of the evidence is
significant or not will depend on the circumstances of the case
and the fact(s) in issue. The court can consider the evidence
alone, or in relation to other evidence.
See clause 101 below for an additional consideration regarding
admissibility of tendency evidence in relation to criminal
proceedings.
33
The exclusionary tendency rule does not apply to tendency
evidence adduced to explain or contradict tendency evidence
adduced by another party. Such evidence is not excluded under
this clause.
The Note to clause 97 sets out that other specific exceptions to
the tendency rule are contained in clauses 110 and 111 of the
Bill. These specific exceptions relate to character evidence of an
accused, and permit the admission of evidence, in some
circumstances, that would otherwise be inadmissible due to the
tendency rule.
Clause 98 sets out the exclusionary rule for coincidence evidence.
The rule ("the coincidence rule") prevents the admission of
evidence of the occurrence of two or more events that is being
tendered 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.
The clause applies where the party adducing the evidence of the
two or more events relies on any similarities in the events or any
similarities in the circumstances in which the events occurred.
The clause also applies where the evidence of the two or more
events relies on any similarities in both the events and
circumstances in which the events occurred.
There is an exception to the coincidence rule. Coincidence
evidence can be admitted under this clause if appropriate notice
is given and the court finds that the evidence of the two or more
events has significant probative value. The assessment of
probative value can take into account other evidence, not just the
coincidence evidence alone.
This clause incorporates recommendation 11-1 of the 2005 LRCs'
Report and omits the requirement (contained in section 98 of the
UEAs) that the events be substantially similar with the
surrounding circumstances.
See clause 97 above for a discussion of significant probative
value.
See clause 101 below for an additional consideration regarding
admissibility of coincidence evidence in relation to criminal
proceedings.
The Note to subclause (1) clarifies the intention and effect of the
provision by stating that the two or more related events, which
constitute the coincidence evidence, may include an event which
is a fact in issue in the proceeding. This note implements
recommendation 11-2 of the 2005 LRCs' Report.
34
The exclusionary coincidence rule does not apply to coincidence
evidence adduced to explain or contradict coincidence evidence
adduced by another party. Such evidence is not excluded under
this clause.
Clause 99 requires any notice to be given in accordance with the regulations
or rules of court.
Clause 100 sets out the circumstances in which the court may dispense with
notice requirements. It enables the court, on the application of a
party, to direct that the tendency rule or coincidence rule is not to
apply to particular evidence despite the party's failure to give
notice under clauses 97 or 98.
Clause 101 provides a further consideration in relation to the admissibility of
both tendency and coincidence evidence adduced in a criminal
proceeding. In such a proceeding, where tendency or coincidence
evidence is not ruled out by clauses 97 or 98, the court must then
consider whether the probative value of such evidence
substantially outweighs any prejudicial effect that it may have on
the defendant.
See clause 97 above for an explanation of the defined term
probative value. Whilst the term "substantially" is not defined,
the 2005 LRCs' Report makes it clear that the clause is not
intended to be read narrowly and the court should engage in an
act of balancing the probative value of the evidence with the
prejudicial effect it may have on the defendant. In carrying out
this test, the court is not to rule out evidence merely because it
finds there is a "reasonable view" of the evidence that is
consistent with innocence.
The 2005 LRCs' Report also supported the application of the test
outlined by Spigelman CJ in the decision of R v Ellis (2003) 58
NSWLR.
This clause does not prevent the prosecution from adducing
tendency or coincidence evidence to explain or contradict
tendency or coincidence evidence adduced by the defendant.
PART 3.7--CREDIBILITY
Division 1--Credibility evidence
Clause 101A inserts a definition of the evidence to which the "credibility
rule" in clause 102 applies. "Credibility" evidence is either
evidence that is (a) relevant only because it affects the
assessment of the credibility of the witness or person, or
(b) relevant because it affects the assessment of credibility and is
35
relevant, but not admissible, or cannot be used, for some other
purpose under Parts 3.2 to 3.6 of the Bill.
Paragraph (b) has been inserted to address the decision of the
High Court of Australia in Adam v The Queen (2001) 207 CLR
96 (Adam). Prior to Adam, the provisions in Part 3.7 controlled
the admissibility of evidence so that the credibility rule applied if
evidence was relevant both to credibility and a fact in issue, even
where the evidence was admissible for the purpose of proving a
fact in issue.
Adam considered section 102 of the UEAs, which is in effect, the
same as clause 101A(a) of this Bill. The result of that decision is
that control of evidence for more than one purpose, including
credibility, depends entirely upon the exercise of the discretions
and exclusionary rules contained in clauses 135 to 137. This has
the potential to lead to greater uncertainty, inconsistent outcomes
and increased appeals.
The introduction of the elements in clause 101A(b) make
evidence relevant to both credibility and a fact in issue, but not
admissible for the latter purpose, subject to the same rules as
other credibility provisions.
Clauses 101A and 102 are in accordance with the 2005 LRCs'
Report (recommendation 12-1).
The Note to clause 101A clarifies that clauses 60 (exception to
the hearsay rule) and 77 (exception to the opinion rule) are not
relevant in the determination of admissibility for another purpose
under clause 101A because they cannot apply to evidence which
has not yet been admitted. The inclusion of this note is in
response to the decision in Adam.
Division 2--Credibility of witnesses
This Division deals with the "credibility rule" and additional protections and
exceptions to that rule.
Clause 102 states the credibility rule itself--credibility evidence about a
witness is not admissible. Accordingly, evidence that comes
within the definition of credibility evidence in clause 101A is not
admissible. The existence of clause 101A is not intended to
change the law in this regard.
The Note to clause 102, however, sets out exceptions to the rule,
and lists the clauses in the Bill that permit the admission of
credibility evidence in some circumstances.
Clauses 101A and 102 are in accordance with the 2005 LRCs'
Report (recommendation 12-1).
36
Clause 103 provides an exception to the credibility rule. The rule does not
apply to evidence to be adduced in cross-examination if the
evidence could substantially affect the assessment of the
credibility of the witness.
Under this clause, the test is not whether the evidence has
substantial probative value. Under section 103 of the UEAs the
test was whether the evidence has substantial probative value and
common law interpretation of this section considered the
co-existing definition of probative value in the Dictionary in the
Bill. The two provisions combined had the unintended effect of
shifting the focus from issues of credibility (see R v RPS
unreported, NSW Court of Criminal Appeal, Gleeson CJ, Hunt J
at CL and Hidden J, 13 August 1997).
This clause implements recommendation 12-2 of the 2005 LRCs'
Report and makes it clear that the evidence relevant to credibility
must be substantial in order to be admitted.
Clause 104 provides an additional safeguard in relation to credibility
evidence adduced in criminal proceedings. It protects a
defendant who gives evidence in criminal proceedings by
requiring the leave of the court for the cross-examination of the
defendant on matters relevant to the assessment of the
defendant's credibility.
Subclause (3) provides that leave is not required where cross-
examination by the prosecutor relates to whether the defendant
was biased or had a motive to be untruthful, whether the
defendant is or was unable to be aware of or to recall matters to
which his or her previous representation relates or whether the
defendant has made a previous inconsistent statement.
Under subclause (4), where leave is required, it must not be given
to the prosecution unless the defendant has adduced evidence that
tends to prove that a prosecution witness has a tendency to be
untruthful and the evidence is relevant solely or mainly to the
witness's credibility. Subclause (5) makes it clear that
subclause (4) does not include a reference to evidence of conduct
in relation to the proceedings.
Under subclause (6) a second (or other) defendant cannot be
given leave for cross-examination unless the evidence of the first
defendant is adverse to the second (or other) defendant and that
evidence has been admitted.
The clause is intended to enable the court to exercise control over
unwarranted attacks on the credibility of a prosecution witness.
37
Clause 105 contains no substantive provisions. Its inclusion ensures parity in
section numbering with the Commonwealth and New South
Wales Acts.
Clause 106 provides that in specific circumstances the credibility rule does
not apply to rebutting a witness's denials by other evidence.
Subclause (1)(a) sets out the specific circumstances--when in
cross-examination of the witness, the substance of the evidence is
put to the witness and it is denied, or the witness did not admit or
agree to it. If the court then gives leave, credibility evidence can
be adduced.
The inclusion of the circumstance "the witness . . . did not agree
to it" is in response to the 2005 LRCs' Report (recommendation
12-5). It found that a sole requirement that the substance of the
evidence be denied and that the evidence be relevant to a defined
category may prevent the admission of important evidence for
reasons of efficiency rather than fairness. Clause 106 creates a
broader basis on which to admit evidence.
Subclause (2) provides that leave is not required where the
evidence falls within paragraphs (a) to (e). These circumstances
include where the witness is biased, has made a prior inconsistent
statement or where the witness is, or was, unable to be aware of
matters to which their evidence relates.
Clause 107 contains no substantive provisions. Its inclusion ensures parity in
section numbering with the Commonwealth and New South
Wales Acts.
Clause 108 provides exceptions to the credibility rule. First, for evidence
adduced in re-examination of a witness. Second, if the court
gives leave, the credibility rule does not apply to evidence of a
prior consistent statement of a witness if--
· evidence of a prior inconsistent statement of the witness
has been admitted; or
· it is or will be 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.
38
Division 3--Credibility of persons who are not witnesses
This Division implements recommendations 12-1 and 12-6 of the 2005 LRCs'
Report.
Clause 108A deals with the admissibility of credibility evidence of a person
who has made a previous representation. Previous
representation is a defined term.
Subclause (1) applies to all situations in which evidence of a
previous representation has been admitted and where the maker
of the representation is not called to give evidence.
In accordance with recommendations 12-1 and 12-6 of the 2005
LRCs' Report, this clause reflects the new definition of credibility
evidence (see clauses 102 and 103(2)) so that credibility evidence
about the person will not be admissible unless it could
substantially affect the person's credibility. It ensures that
subclause (1) applies to evidence relevant to credibility.
Clause 108A only applies where the person who made the
representation will not be called to give evidence in the
proceeding. Where that person is the defendant or a witness for
the defence, it will be up to the defence whether or not to call that
person to give evidence. However, this may not be decided
(or disclosed) prior to the close of the Crown case, potentially
leading to uncertainty as to whether the relevant person who
made the representation will be called. Without this information,
the prosecution cannot rely on the provisions of clause 108A to
admit credibility evidence.
However, clause 46 of the Bill provides that the court may give
leave to a party to recall a witness if another party raised a matter
on which the relevant witness was not cross-examined. Further,
this problem can be overcome by the prosecution later being able
to reopen its case, or being allowed to call a case in reply:
see R v Siulai [2004] NSWCCA 152. See clause 108B below
for an additional consideration regarding defendants.
Clause 108B provides further protections in relation to previous
representations of an accused who is not a witness.
Clause 108B provides that if evidence of a prior representation
made by the defendant in a criminal trial has been admitted, and
the defendant has not or will not be called to give evidence, the
same restrictions on adducing evidence relevant to the credibility
of the defendant should apply as under clause 104. This is to
overcome the position in relation to section 108A of the UEAs,
which could permit a situation where the prosecution could
39
tender a prior representation of the defendant and then lead
credibility evidence against the defendant.
Subclause (2) provides that the prosecution must ordinarily seek
the court's leave where it wishes to tender evidence relevant only
to a defendant's credibility. When deciding whether to grant
leave, the court is to take into account matters in subclause (4).
Subclause (3) provides that leave is not required, however, where
cross-examination by the prosecutor relates to whether the
defendant was biased or had a motive to be untruthful, whether
the defendant is or was unable to be aware of or to recall matters
to which his or her previous representation relates or whether the
defendant has made a previous inconsistent statement.
Under subclause (4), where leave is required, it must not be given
to the prosecution unless the defendant has adduced evidence that
tends to prove that a prosecution witness has a tendency to be
untruthful and the evidence is relevant solely or mainly to the
witness's credibility. Subclause (5) makes it clear that
subclause (4) does not include a reference to evidence of conduct
in relation to the proceedings.
Under subclause (4) there may be a situation where the defence
adduces this evidence after the Crown has closed its case.
The issues that arise in this situation are discussed under
clause 108A.
Under subclause (6) a second (or other) defendant cannot be
given leave for cross-examination unless the evidence of the first
defendant is adverse to the second (or other) defendant and that
evidence has been admitted.
This clause is in accordance with the 2005 LRCs' Report
(recommendation 12-6).
Division 4--Persons with specialised knowledge
Clause 108C creates a new exception to the credibility rule. This exception
applies to expert opinion evidence that could substantially affect
the assessment of the credibility of a witness. This evidence can
only be adduced with leave of the court. The purpose of the
clause is to permit expert opinion evidence in situations where it
would be relevant to the fact-finding process (for example, to
prevent misinterpretation of witness behaviour or inappropriate
inferences being drawn from that behaviour).
40
Subclause (2) clarifies that specialist knowledge includes
specialised knowledge of child development and behaviour.
This clause complements clause 79.
This clause is in accordance with the 2005 LRCs' Report
(recommendation 12-7).
PART 3.8--CHARACTER
This Part sets out rules relating to evidence of the character of a defendant in
a criminal proceeding.
Clause 109 restricts the application of Part 3.8 to criminal proceedings.
Clause 110 provides exceptions to the hearsay rule, the opinion rule, the
tendency rule and the credibility rule for evidence adduced by a
defendant about his or her own good character and evidence
adduced to rebut such evidence.
Clause 111 provides an exception to the hearsay rule and tendency rule for
expert opinion evidence about a defendant's character adduced by
a co-accused.
Clause 112 requires leave to be obtained to cross-examine a defendant about
matters set out in Part 3.8.
This clause amends section 112 of the UEAs to correct a minor
drafting inconsistency between subsection 104(2) and
section 112. The words in section 112 "is not to be" are replaced
with "must not be". This implements recommendation 12-4 of
the 2005 LRCs' Report, but does not make any substantive
change to the law.
PART 3.9--IDENTIFICATION EVIDENCE
This Part sets out exclusionary rules for visual identification evidence in a
criminal proceeding and provides for the giving of warnings to juries about
identification evidence. Identification evidence is a defined term.
Clause 113 restricts the application of Part 3.9 to criminal proceedings.
Clause 114 provides a general exclusionary rule for visual identification
evidence. Visual identification evidence adduced by the
prosecution is not admissible unless--
· an identification parade that included the defendant was
held before the identification was made; or
· it was not reasonable to hold such a parade; or
41
· the defendant refused to take part in such a parade--
and the identification was made without the person who made it
having been intentionally influenced to identify the defendant.
Subclause (3) sets out some of the matters that a court may take
into account in determining whether it was reasonable to have
held an identification parade. These include the kind and gravity
of the offence, the importance of the evidence and the practicality
of holding such a parade (including, if the defendant failed to
cooperate, the manner and reason for the failure).
Under subclauses (4) and (5), it is to be presumed that it would
not have been reasonable to hold an identification parade if it
would have been unfair to the defendant to hold the parade or the
defendant refused to take part in the parade unless an Australian
legal practitioner (a defined term) or other party was present and
there were reasonable grounds to believe this was not reasonably
practicable.
Subclause (6) stipulates that in determining whether it was
reasonable to hold a parade, the court is not to take into account
availability of pictures or photographs that could be used in
making identifications.
Clause 115 sets out the rules governing the admissibility of visual
identification evidence where the identification was made wholly
or partly after examining pictures (defined to include
photographs) kept for use by police officers.
Subclause (2) makes it clear that if the pictures looked at by a
witness suggest that the person is in police custody (for example,
the picture displays a prisoner identification number), then the
evidence will be inadmissible. This clause is based on the
prejudice that could flow if a person appears to be in police
custody in the picture and this influences selection of that picture
by the witness.
Subclause (3) sets out another limited exclusion. Under this
subclause, the prosecution cannot adduce evidence where the
visual identification occurs at a time when the defendant is in
custody and the visual identification is of a photo taken at a time
prior to the defendant being taken into custody. If there is a lapse
in time between the photograph (for example) being taken of the
defendant and the photograph being shown to a witness, that
evidence will prima facie be inadmissible. This clause is
designed to encourage police officers to provide current
photographs for the purpose of identification. However, there are
exceptions to this exclusion. These are set out in the next
subclause.
42
Subclause (4) provides that even if there has been a lapse of time
between the taking of the photograph and the photograph being
shown to a witness, identification evidence is admissible under
this clause if either of the following two circumstances apply--
· the appearance of the defendant has changed
significantly during the lapsed period; or
· it was not reasonably practicable to take a (second)
picture after the defendant was taken into custody.
A qualification in relation to subclause (4) is contained in
subclause (5). For the evidence to remain admissible, one of the
following circumstances must exist--
· the defendant refused to take part in an identification
parade;
· the appearance of the defendant has changed
significantly during the lapsed period (accordingly, an
identification parade would have been of little utility);
or
· it would not have been reasonable to have held an
identification parade that included the defendant (for
example, because there were insufficient appropriate
people to include in the parade).
Subclause (7) sets out information and a warning that a judge
must give in relation to identification evidence, if requested to do
so by the defendant.
Clause 116 requires the judge to inform the jury of the special need for
caution before accepting identification evidence admitted in the
proceedings. No particular form of words is required.
PART 3.10--PRIVILEGES
Division 1--Client Legal Privilege
This Part sets out evidence that is protected from disclosure on grounds of
privilege or for public policy considerations.
Clause 117 defines, for the purposes of the Division, the terms client,
confidential communication, confidential document, lawyer and
party. The definition of client has a wide meaning, including, for
example, government employees. The definition of client
includes a person or body who engages a lawyer to provide legal
services or who employs a lawyer (including under a contract of
43
service). Under this definition there is no distinction between
government and private lawyers--a client is allowed to be an
employer of the lawyer.
This clause contains the definition of client relevant to client
legal privilege, in accordance with recommendation 14-2 of the
2005 LRCs' Report. The recommendation changes the definition
of client (in section 117 of the UEAs) from "an employer (not a
lawyer) of a lawyer" to "a person or body who engages a lawyer
to provide legal services or who employs a lawyer (including
under a contract of service)". The purpose of the amendment is
to remove the distinction between government and private
lawyers--a client is allowed to be an employer of the lawyer.
Accordingly, subclause (1) defines lawyer for the purposes of
client legal privilege to include "Australian lawyers", that is,
those who are admitted to practice but do not necessarily have a
current practising certificate.
It is intended that the definition of lawyer for the client legal
privilege provisions reflect the breadth of the concept in the case
law. The policy of the privilege does not justify its restriction to
those with a practising certificate, particularly since a range of
lawyers may provide legal advice or professional legal services in
various jurisdictions. It is the substance of the relationship that is
important, rather than a strict requirement that the lawyer hold a
practising certificate. Employees and agents of lawyers are also
included.
This clause is not intended to affect the common law concept of
independent legal advice.
This clause adopts the ACT Court of Appeal decision in
Commonwealth v Vance [2005] ACTCA 35. In considering the
definition of lawyer under section 117 of the UEAs, the ACT
Court of Appeal found that a practising certificate was an
important indicator, but not conclusive on the issue of whether
the legal advice was sufficiently independent to constitute legal
advice under the requirements of the UEAs.
The broader definition in this clause includes a person who is
admitted in a foreign jurisdiction. The rationale of client legal
privilege is to serve the public interest in the administration of
justice and its status as a substantive right means it should not be
limited to advice obtained only from Australian lawyers.
This position reflects the reasoning of the Full Federal Court in
Kennedy v Wallace (2004) 142 FCR 185.
Clauses 118-120 clarify the circumstances under which "client legal
privilege" can arise.
44
Clause 118 is concerned with client legal privilege arising out of the
provision of legal advice. It provides protection from disclosure
in court for--
· confidential communications passing between the client
and his or her lawyers;
· the client's lawyers; or
· the contents of a confidential document prepared by the
client, lawyer or another person--
made for the dominant purpose of the lawyer (or lawyers)
providing legal advice to the client.
The Model Uniform Evidence Bill amends section 118(c) of the
UEAs by replacing the words "client or a lawyer" with "client,
lawyer or another person". This implements recommendation
14-4 of the 2005 LRCs' Report.
Clause 118(c) extends the privilege to confidential documents
prepared by someone other than the client or lawyer (such as an
accountant or consultant) for the dominant purpose of the lawyer
providing legal advice to the client. This reflects developments
in the common law consideration of legal advice privilege as
discussed by the Full Federal Court in Pratt Holdings v
Commissioner of Taxation (2004) 207 ALR 217.
Clause 119 is concerned with client legal privilege arising out of the
provision of professional legal services relating to litigation.
It provides protection from disclosure in court for confidential
communications and documents made for the dominant purpose
of the client being provided with professional legal services
relating to a proceeding or an anticipated or pending proceeding
to which the client is or may be a party.
Clause 120 is concerned with client legal privilege of unrepresented parties.
It provides protection from disclosure in a court proceeding for
confidential communications between a party who is not
represented by a lawyer and other persons and for documents
prepared by, or at the request of the party, for the dominant
purpose of preparing for or conducting the proceeding.
The "dominant purpose" test adopted in the above provisions is
more liberal than the "sole purpose" test adopted in the decision
of the High Court of Australia in Grant v Downs (1976) 135
CLR 674.
45
Clause 121 makes provision for the loss of client legal privilege generally.
The privilege will be lost when the client or party has died and
the evidence is relevant to the question of the client's or party's
intentions or competence in law. It will also be lost if the result
of not admitting the evidence would be that the court would be
prevented from enforcing an order of an Australian court.
The clause does not prevent the adducing of evidence of a
communication or document that affects a right of a person.
Clause 122 deals with the loss of client legal privilege: consent and related
matters.
Clause 122 is designed to align the Bill more closely with the
common law test for loss of privilege as set out in Mann v
Carnell (1999) 201 CLR 1. This implements recommendation
14-5 of the 2005 LRCs' Report.
Section 122 of the UEAs provides that client legal privilege is
lost by consent or by knowing and voluntary disclosure of the
substance of the evidence. However, this clause provides that
evidence may be adduced where a client or party has acted in a
manner inconsistent with the maintenance of the privilege.
Clause 122 is concerned with the behaviour of the holder of the
privilege, as opposed to the intention of the holder of the
privilege, as has been the case under section 122 of the UEAs.
The intention of this clause is that the privilege should not extend
beyond what is necessary, and that voluntary publication by the
client should bring the privilege to an end. The addition of the
inconsistency criterion for waiver also gives the court greater
flexibility to consider all the circumstances of the case.
Clause 123 ensures that a defendant in a criminal proceeding can adduce
evidence of confidential communications and documents except
such communications between, or documents prepared by, an
associated defendant (a defined term) or his or her lawyer.
Clause 124 provides that in a civil proceeding involving joint clients of a
lawyer, one of the joint clients can adduce evidence concerning
the confidential communications and documents made by any of
the joint clients.
Clause 125 provides that client legal privilege is lost for confidential
communications made and documents prepared in furtherance of
a fraud, an offence, or an act that renders a person liable to a civil
penalty or a deliberate abuse of statutory power.
Subclause (2) provides that if the commission of a fraud, offence
or act referred to in subclause (1) is a fact in issue in the
proceeding and there are reasonable grounds for finding that it
46
was committed and for finding that the communication or
document was made or prepared in the 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 as
the case may require.
Clause 126 provides that where client legal privilege does not prevent
evidence being adduced of a communication or a document, it
also does not prevent evidence being adduced of another
communication or document reasonably necessary to enable a
proper understanding of the first communication or document.
An example is included in the Bill to illustrate the intention of
this clause.
Division 2--Other privileges
Clause 127 entitles members of the clergy to refuse to divulge both the
contents of religious confessions made to them in their
professional capacity and the fact that they have been made.
The entitlement applies even if an Act provides that the rules of
evidence do not apply, that a person or body is not bound by the
rules of evidence or that a person is not excused from answering
a question or producing any document or thing because of
privilege or otherwise.
Subclause (2) provides that the privilege does not apply if the
communication involved was made for a criminal purpose.
This privilege is based on an acknowledgment that some
religions have a ritual of confessing one's sins to a member of the
clergy as God's human intermediary, in circumstances where the
member of the clergy is bound to keep the contents of the
confession confidential. The privilege acknowledges that
members of clergy, whose faith requires absolute confidentiality
of a confession, would be placed in an intolerable situation if
required to choose between compliance with a strict provision of
their faith and an order of a court. Consequently, this privilege
promotes the right to freedom of religion for the clergy of
religious denominations which include the ritual of confession.
Clause 128 sets out the process which the court is to undertake when a
witness objects to giving particular evidence, or evidence on a
particular matter, on the grounds that the evidence may tend to
prove he or she has committed an offence or is liable to a civil
penalty.
47
The court must determine whether there are reasonable grounds
for the objection and if it finds that there are, the court is to
advise the witness that they do not need to give the evidence
unless required to do so by the court. In such circumstances,
where the witness gives the evidence, whether required to by the
court or otherwise, the court is to give the witness a certificate.
The court can only require the witness to give the evidence if the
evidence does not tend to prove the witness has committed an
offence or may be liable to a civil penalty under the law of a
foreign country and the interests of justice require that the
witness give the evidence. A certificate makes the evidence
(and evidence obtained as a consequence of its being given)
inadmissible in any Australian proceeding, except a criminal
proceeding in respect of the falsity of the evidence.
Subclauses (8) and (9) respond to two issues considered in the
decision of the High Court of Australia in Cornwell v The Queen
[2007] HCA 12 (Cornwell). The issues concerned the
applicability of the certificate to a retrial and the operation of a
certificate in circumstances where the validity of the certificate
has been called into question.
Subclause (8) provides that a certificate has effect regardless of
the outcome of any challenge to its validity. This clause is
included on the basis that the granting of a certificate under
clause 128 is not the same as any other evidential ruling.
To ensure that the policy of clause 128 is effective, the witness
must be certain of being able to rely on that certificate in future
proceedings.
Subclause (9) provides that the operation of the certificate does
not apply to a proceeding which is a retrial for the same offence
or a trial for an offence arising out of the same facts that gave rise
to the original criminal proceeding in which the certificate was
issued.
The Notes to the clause, amongst other matters, make it clear that
the privilege does not apply to bodies corporate.
Clause 128A provides a process to deal with objections on the grounds of
self-incrimination when complying with a search order (Anton
Piller) or a freezing order (Mareva) in civil proceedings other
than under the proceeds of crime legislation. Examples of search
orders and freezing orders can be found in Orders 37A and 37B
of the Supreme Court (General Civil Procedure) Rules 2005.
This clause addresses, but does not implement, recommendation
15-10 of the 2005 LRCs' Report. The clause is based upon the
VLRC Implementation Report. It provides that the privilege
48
against self-incrimination under the Bill applies to disclosure
orders. The principal provisions are outlined below.
Subclause (2) provides that where objection is taken to the
provision of information required under a disclosure order, the
person who is subject to the order must prepare an affidavit
containing the required information to which objection is taken
(called a privilege affidavit), deliver it to the court in a sealed
envelope, and file and serve on each other party a separate
affidavit setting out the basis of the objection.
Subclause (5) provides that if the court finds there are reasonable
grounds for the objection, unless the court requires the
information to be provided pursuant to subclause (6), the court
must not require the disclosure of the information and must
return it to the person.
Subclause (6) provides that if the court is satisfied that the
information may tend to prove that the person has committed an
offence or is liable to a civil penalty under Australian law, but not
under the law of a foreign country, and the interests of justice
require the information to be disclosed, the court may require the
whole or any part of the privilege affidavit to be filed and served
on the parties.
Subclause (7) provides that the court must give the person a
certificate in respect of the information that is disclosed pursuant
to subclause (6).
Subclause (8) provides that evidence of that information and
evidence of any information, document or thing obtained as a
direct result or indirect consequence of the disclosure cannot be
used against the person in any proceeding, other than a criminal
proceeding in relation to the falsity of the evidence concerned.
Subclause (9) clarifies that the protection conferred by
clause 128A does not apply to information contained in
documents annexed to a privilege affidavit that were in existence
before a search or freezing order was made.
Subclause (10) provides that a certificate has effect regardless of
the outcome of any challenge to its validity. As discussed in
relation to clause 128(8) above, this clause is in response to the
Cornwell decision, and serves the same function.
Clause 187 sets out the circumstances in which bodies corporate
cannot claim this privilege.
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Division 3--Evidence excluded in the public interest
Clause 129 prohibits (subject to some exceptions) evidence of the reasons for
a decision, or of the deliberations of a judge or an arbitrator being
given by the judge or arbitrator, or by a person under his or her
direction or control, or by tendering a document prepared by any
of these persons. The clause does not apply to published reasons
for decisions.
The clause also prohibits evidence of the reasons for a decision or
the deliberations of a member of a jury in a proceeding being
adduced by any jury member in another proceeding.
Subclause (5) provides that the prohibitions in this clause do not
apply in various types of proceedings. For example, a
prosecution for offences of attempting to pervert the course of
justice or perverting the course of justice.
Clause 130 requires a court to prevent evidence of matters of state (for
example, matters affecting international relations or law
enforcement) being adduced if the public interest in admitting the
evidence is outweighed by the public interest in preserving its
secrecy or confidentiality.
The clause provides some guidance on the nature of evidence
which relates to matters of state and lists some matters to be
taken into account by the court when determining whether to
direct that information or a document not be adduced as
evidence.
Subclause (5) sets out matters the court is to take into account
when determining whether to exclude evidence of matters of
state. Such matters include--
· the importance of the information or document in the
proceeding;
· the likely effect of adducing evidence of the information
or document and the means available to limit its
publication;
· in a criminal proceeding, whether the party seeking
to adduce evidence is a defendant or a prosecutor.
Further, if a defendant is seeking to adduce the
evidence, whether the direction is to be made subject
to a condition that the prosecution be stayed.
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Clause 131 provides that evidence is not to be adduced of communications
made between, or documents prepared by, parties in dispute in
connection with attempts to settle the dispute (this does not
include attempts to settle criminal proceedings).
The circumstances in which this privilege does not apply are set
out in the clause (for example, if the parties consent or if the
communication affects the rights of a person).
Division 4--General
Clause 131A expands the scope of privileges in the Bill so that they apply to
any process or order of a court which requires disclosure as part
of preliminary proceedings. This implements recommendation
14-6 in full and recommendations 14-1, 15-3, 15-6 and 15-11 in
part of the 2005 LRCs' Report.
The 2005 LRCs' Report noted that the introduction of the UEAs
meant that two sets of laws operated in the area of privilege.
The UEAs govern the admissibility of evidence of privileged
communications and information. Otherwise the common law
rules apply unless the privilege is expressly abrogated by statute.
Within a single proceeding, different laws applied at the pre-trial
and trial stages. The ability to resist or obtain disclosure of the
same information varied.
The 2005 LRCs' Report recommended that the operation of client
legal privilege, professional confidential relationship privilege,
sexual assault communications privilege and matters of state
privilege should be extended to apply to any compulsory pre-trial
process for disclosure (recommendations 14-1, 15-3, 15-6 and
15-11 respectively).
This provision partly implements those recommendations, by
extending the operation of the privileges to pre-trial court
proceedings.
The clause, implementing recommendation 14-6, ensures that
clause 123 remains applicable only to the adducing of evidence at
trial by an accused in a criminal proceeding, despite the extension
of client legal privilege to pre-trial court proceedings.
The privileges are not extended to non-curial contexts.
Clause 132 provides that a court must satisfy itself that a witness or party is
aware of his or her rights to claim a privilege under this Part if it
appears that the witness or party may have a ground for making
an application or objection under it. If there is a jury, this is to be
done in the absence of the jury.
51
Clause 133 makes it clear that a court can call for and examine any document
in respect of which a claim for privilege under this Part is made
so that it may determine the claim.
Clause 134 provides that if, under this Part, evidence must not be adduced or
given in a proceeding, the evidence is not admissible in the
proceeding.
PART 3.11--DISCRETIONARY AND MANDATORY
EXCLUSIONS
Clause 135 provides a general discretion to exclude evidence if its probative
value is substantially outweighed by the danger of it being
unfairly prejudicial to a party, misleading or confusing or
possibly causing or resulting in undue waste of time.
Clause 136 enables the court to limit the use to be made of evidence where
there is a danger that a particular use might be unfairly
prejudicial or misleading or confusing.
Under the Bill, evidence can be used to support any rational
inference once the evidence is admitted for any reason.
This clause gives the court discretion to admit evidence and
limit its use instead of leaving it with a power only to admit or
to exclude.
Clause 137 provides that the court must exclude prosecution evidence in
criminal proceedings if its probative value is outweighed by the
danger of unfair prejudice to the accused. The 2005 LRCs'
Report refers to common law authority that evidence is not
unfairly prejudicial to a defendant merely because it damages
the defence case.
Probative value is a defined term. This clause requires the court
to systematically assess the probative value of the evidence
against the real risk that the tribunal of fact will misuse the
evidence in some unfair way.
Clause 138 enables the court to exclude evidence obtained improperly,
unlawfully or in consequence of an impropriety or a
contravention of the law. Such evidence is excluded unless the
desirability of admitting it outweighs the undesirability of
admitting evidence obtained in the particular way it was
obtained. The clause is intended to reflect, with some
modifications, the exclusionary discretion at common law that is
known as the rule in Bunning v Cross (1978) 141 CLR 54.
The clause sets out a range of factors the court can consider when
determining whether to exclude evidence under this clause.
52
Clause 139 sets out the circumstances in which evidence of a statement made
or act done by a person during questioning by investigating
officials is to be taken to have been improperly obtained for the
purpose of clause 138. It applies both to officials who have the
power to arrest and to those with no such power. The definition
of investigating officials excludes covert operatives acting under
the orders of a superior.
Evidence of the statement made or act done is taken to have been
improperly obtained if the investigating official did not caution
the person before starting to question the person in the
circumstances set out in the clause. Those circumstances differ
depending on whether the official had the power to arrest.
The caution must be to the effect that the person need not say or
do anything but that anything the person does say or do may be
used in evidence. The caution must be given in, or translated
into, a language in which the person is able to communicate with
reasonable fluency but need not be in writing unless the person is
unable to hear adequately.
The requirement for a caution does not apply in so far as any
Australian law requires the person being questioned to answer
questions put by or do things required by an investigating
official.
The provision is consistent with the 2005 LRCs' Report
recommendation 10-1 and addresses the decision of the majority
of the High Court in Kelly v The Queen (2004) 218 CLR 216
regarding the meaning of "official questioning". See clause 85
above for reference to this case.
CHAPTER 4--PROOF
PART 4.1--STANDARD OF PROOF
Clause 140 provides that the standard of proof in civil proceedings is proof
on the balance of probabilities and lists some of the matters a
court must take into account in determining whether a case is
proved. The court may take additional matters into account.
Clause 141 provides that the standard of proof in criminal proceedings, in the
case of the prosecution, is proof beyond reasonable doubt and, in
the case of the defendant, proof on the balance of probabilities.
Clause 142 provides that the standard of proof for a finding of fact necessary
for deciding a question whether evidence should or should not be
admitted in a proceeding, or any other question arising under the
Bill (if the Bill does not otherwise provide) is proof on the
53
balance of probabilities. The clause lists some of the matters a
court must take into account in determining whether the standard
has been reached. The court may take additional matters into
account.
PART 4.2--JUDICIAL NOTICE
Clause 143 makes it unnecessary to adduce evidence about matters of law,
including the provisions and coming into operation of Acts and
statutory rules.
Clause 144 makes it unnecessary to adduce evidence about knowledge that is
not reasonably open to question and that is either common
knowledge in the locality where the proceeding is being heard or
can be verified by consulting authoritative sources.
Clause 145 preserves the rules of the common law and equity relating to the
effect of a conclusive certificate relating to a matter of
international affairs.
PART 4.3--FACILITATION OF PROOF
Division 1--General
Clause 146 makes provision in relation to evidence produced wholly or
partly by machines. It may be presumed that a machine was
working properly on the day in question. The provision creates a
rebuttable presumption placing the legal burden of disproof on
the party disputing the presumed fact, but provides that the prima
facie presumption disappears once a real doubt is raised.
Clause 147 creates a similar presumption (to clause 146) for documents
produced by machines in the course of business.
The presumption does not apply to documents that were prepared
in connection with a possible proceeding or made in connection
with a criminal investigation.
Clause 148 provides that it is presumed (unless the contrary is proved) that
documents were attested, verified, signed or acknowledged by a
justice of the peace, an Australian lawyer (a defined term) or a
notary public if they purport to be so attested, verified, signed or
acknowledged.
Clause 149 dispenses with the need to call a witness who attested to the
execution of a document (other than a will or other testamentary
document) to give evidence about the execution of the document.
However, it will still be necessary to prove the signature of the
maker of the document concerned.
54
Clause 150 presumes (unless the contrary is proved) that seals (including
Royal seals, government seals, seals of bodies corporate and seals
of persons acting in an official capacity) are authentic and valid.
A similar presumption is made with respect to the signature of
persons acting in an official capacity.
Clause 151 contains no substantive provision. Its inclusion ensures parity in
section numbering with the Commonwealth Act.
Clause 152 presumes (unless the contrary is proved) that a document that is
more than 20 years old which is produced from proper custody is
what it purports to be and was duly executed or attested.
Division 2--Matters of official record
Clause 153 presumes (unless the contrary is proved) that documents, such as
the Government Gazette and other documents printed with the
authority of the government, are what they purport to be and
were published on the day on which they purport to have been
published. The clause also provides that if such a document
contains or notifies the doing of an official act, it will be
presumed that the act was validly done and, if the date on which
it was done is indicated in the document, the act was done on that
date.
Clause 154 presumes (unless the contrary is proved) that documents
purporting to have been printed by authority of an Australian
Parliament, or a House or Committee of such a Parliament is
what it purports to be was published on the day it purports to
have been published.
Clause 155 provides for evidence of a document that is a Commonwealth
record or a State or Territory public document to be given by
production of a document that purports to be such a record or
document or that purports to be a copy of or extract from that
record that is certified by a Minister.
Evidence will also be able to be given if such a record or
document is signed or sealed or certified to be a copy or extract
by a person who might reasonably be supposed to have custody
of it.
Clause 155A contains no substantive provision. Its inclusion ensures parity
in section numbering with the Commonwealth and New South
Wales Acts.
55
Clause 156 presumes (unless the contrary is proved) 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 have custody of the document is a copy, extract or
summary of the document.
The clause also lists the circumstances in which an order from a
court to produce a public document will be taken to have been
complied with by an officer entrusted with the custody of a
public document.
Clause 157 makes a similar presumption in relation to evidence of public
documents relating to court processes that are examined copies
and have been sealed by a court or signed by a judge, magistrate,
registrar or other proper officer.
Clause 158 provides for the admission in Victorian courts of a public
document that is a public record of another State or Territory to
the same extent and for the same purpose for which it is
admissible under a law of that State or Territory.
Clause 159 provides that a document containing statistics purporting to be
produced by the Australian Statistician is evidence that those
statistics are authentic.
Division 3--Matters relating to post and communications
Clause 160 provides that, unless evidence sufficient to raise doubt is
adduced, a postal article sent by pre-paid post addressed to a
person at a specified address was received at that address on the
fourth working day (as defined) after posting.
This presumption does not apply in a proceeding between all
parties to a contract in relation to the contract if the presumption
is inconsistent with a term of that contract.
Clause 161 provides that, unless evidence sufficient to raise a doubt is
adduced, a range of presumptions apply to records of electronic
communications. The presumptions relate to the mode of
communication, the sender, the time and place of sending and
receipt. Electronic communication is a defined term and
embraces all modern electronic technologies, including
telecommunications, as well as the facsimile and telex methods
of communication.
The presumptions do not apply in a proceeding between all
parties to a contract in relation to the contract if the presumption
is inconsistent with a term of that contract.
56
Clause 162 provides that, unless evidence sufficient to raise doubt is
adduced, it is presumed that a document purporting to contain a
record of a message transmitted by lettergram or telegram was
received by the person to whom it was addressed 24 hours after
the message was delivered to a post office for transmission.
This presumption does not apply in a proceeding between all
parties to a contract in relation to the contract if the presumption
is inconsistent with a term of that contract.
Clause 163 contains no substantive provision. Its inclusion ensures parity in
section numbering with the Commonwealth and New South
Wales Acts.
PART 4.4--CORROBORATION
Clause 164 provides that evidence need not be corroborated. It also
abolishes, subject to the other provisions of the Bill, the existing
rules of law or practice that require warnings or directions to be
given to a jury in the absence of corroboration. The provision
does not apply to a rule of law requiring corroboration with
respect to perjury or a like offence.
PART 4.5--WARNINGS AND INFORMATION
Clause 165 allows any party in a jury trial to ask the judge to give a warning
to the jury about the unreliability of evidence to which the clause
applies and the need for care in determining the weight to attach
to the evidence. The clause sets out the types of evidence that
may be unreliable and includes hearsay evidence, evidence of
admissions and evidence affected by the age or ill-health of the
witness.
Subclause (3) provides that a judge need not comply with a
party's request if there are good reasons for not doing so. If a
warning is given, no particular form of words need be used in
giving the warning or information.
The clause is not intended to affect any other power of the judge
to give a warning to, or inform, the jury.
The clause prohibits a judge from warning or informing the jury
about the reliability of a child's evidence. It stipulates that any
warning about a child's evidence must be given in accordance
with clause 165A.
57
Clause 165A deals with warnings in relation to children's evidence.
The clause is based on the 2005 LRCs' Report (recommendation
18-2) which refers to research that demonstrates that children's
cognitive and recall skills are not inherently less reliable than
adults. However, the credibility of children's evidence may be
underestimated by juries. This perception of unreliability is
enhanced if a judge gives a general warning about the
unreliability of child witnesses. This clause addresses
these misconceptions and reinforces the policy underpinning
clause 165 that warnings should only be given where the
circumstances of the case indicate they are warranted.
Subclause (1) provides that in any proceeding in which evidence
is given by a child before a jury, a judge is prohibited from
warning or suggesting to the jury--
· that children as a class are unreliable witnesses;
· that the evidence of children as a class is inherently less
credible or reliable, or requires more careful scrutiny,
than the evidence of adults;
· that a particular child's evidence is unreliable solely on
account of the age of the child;
· in criminal proceedings, that it is dangerous to convict
on the uncorroborated evidence of a witness who is a
child.
Under subclause (2) a party can request a warning (or
information) to be made in relation to a particular child. If such
a request is made, the court must be satisfied that there are
circumstances particular to that child (other than age) that affect
the reliability of the child's evidence and warrant the giving of a
warning or information to the jury. If the court so finds, it can--
· inform the jury that the evidence of a particular child
may be unreliable and the reasons for which it may be
unreliable; or
· warn or inform the jury of the need for caution in
determining whether to accept the evidence of the
particular child and the weight to be given to it.
Subclause (3) provides that this clause does not affect any other
power of a judge to give a warning to, or inform, the jury.
58
Clause 165B regulates warnings to juries in criminal proceedings where a
delay as been found by the court to have resulted in a significant
forensic disadvantage to the defendant.
Under subclause (2), the defendant must apply to the judge for
a warning to be given. The court can only give a warning if
satisfied that the defendant has in fact suffered a significant
forensic disadvantage and that this is a result of delay.
When giving such a warning, the court must tell the jury about
the nature of the disadvantage and the need to take this into
account when considering the evidence. Whilst no specific
words are required to be used in the warning, subclause (4)
makes it clear that the judge is prohibited from suggesting in any
way that it would be dangerous or unsafe to convict the defendant
solely because of the delay or significant forensic disadvantage.
A relevant delay for the purposes of this section is a lapse in time
between the alleged offence and its being reported. Subclause (5)
makes it clear that delay alone will not be sufficient to constitute
significant forensic disadvantage.
Subclause (3) provides that the judge need not comply with
subclause (2) if there are good reasons for not doing so.
Clause 165B is intended to replace the common law position on
such warnings enunciated in Longman v The Queen (1989) 168
CLR 79. Warnings on delay can only be given in accordance
with this clause. This clause responds to recommendation 18-2
of the 2005 LRCs Report.
PART 4.6--ANCILLARY PROVISIONS
Division 1--Requests to produce documents or call witnesses
Division 1 provides for a party to make certain requests to another party for
the purpose of determining a question that relates to a previous
representation, evidence of a conviction or the authenticity, identity or
admissibility of a document or thing and the party may make such requests
only within the specified time limits (unless the court gives leave to make
them outside those limits).
Clause 166 defines request and includes a request made by a party to another
party for the production, examination, testing, copying of
documents or things; the calling of witnesses, including a witness
who made a previous representation.
59
Clause 167 provides that a party may make a reasonable request to another
party for the purpose of determining a question that relates to a
previous representation, evidence of a conviction or the
authenticity, identity or admissibility of a document or thing.
Clause 168 provides that a party has 21 days to make a request, after
receiving notice of another party's intention to adduce evidence
of a previous representation, or of a conviction in order to prove a
fact in issue, or tender a document in evidence or to prove the
contents of another document. The court may give leave to make
such a request after 21 days if there is good reason to do so.
Clause 169 provides that if a party, without reasonable cause, fails or refuses
to comply with a request, the court may order that the party
comply with the request, produce a specified document or thing,
or call a specified witness, or that the evidence in relation to
which the request was made not be admitted in evidence.
If a party fails to comply with such an order to produce a
specified document or thing or to call a witness, the court may
direct that evidence in relation to which the request was made is
not to be admitted into evidence. The court may also make
orders as to adjournments or costs.
The clause provides examples of circumstances which constitute
reasonable cause for a party to fail to comply with a request and
an inclusive list of matters that the court must take into account
in exercising its power to make orders under the section.
The court may take additional matters into account.
The Note to the clause refers to clauses 4 and 5 of Part 2 of the
Dictionary which provides definitions about the availability of
persons, documents and things.
Division 2--Proof of certain matters by affidavits or written
statements
Clause 170 permits evidence relevant to the admissibility of evidence to
which specified provisions of the Bill apply (for example,
Part 4.3 relating to facilitation of proof) to be given by affidavit
or, if it relates to a public document, by a written statement.
Clause 171 provides for such evidence (as specified in clause 170) to be
given by a person with responsibility for making or keeping the
relevant document or thing. It may be given by an authorised
person (for example, a person before whom an oath can be taken
outside the State) if it would not be reasonably practicable or
would cause undue expense for the responsible person to give the
evidence.
60
Clause 172 enables evidence of a fact in relation to a document or thing to be
given based on information or on knowledge or belief.
An affidavit or statement containing evidence based on
knowledge, information or belief must set out the source of the
knowledge or information or the basis of the belief.
Clause 173 provides that a copy of any affidavit or statement must be served
on each other party a reasonable time before the hearing.
The deponent of the affidavit or maker of the statement must be
called to give evidence if another party so requests.
Division 3--Foreign law
Clause 174 provides for the proof of the statutory law, treaties or acts of state
of foreign countries.
Clause 175 provides for the proof of the case law of foreign countries.
Clause 176 provides for questions as to the effect of foreign law to be
decided by the judge.
Division 4--Procedures for proving other matters
Clause 177 provides for evidence of an expert's opinion to be given by
certificate. The party tendering an expert certificate must serve
notice of it, and a copy of the certificate, on each other party,
21 days before the hearing, or such other period determined by
the court on application by a party. A party so served can require
the expert to be called as a witness.
Clause 178 provides for evidence of a conviction, acquittal, sentencing or
other order by, or other judicial proceeding before, an Australian
or foreign court to be given by a certificate signed by a judge,
magistrate, registrar or other proper officer of the court
concerned.
Clause 179 provides for proof of the identity of a person alleged to have been
convicted of an offence to be adduced by an affidavit of a
fingerprint expert of the police force of the relevant State or
Territory.
Clause 180 provides for proof of the identity of a person alleged to have been
convicted of an offence against a law of the Commonwealth to be
adduced by an affidavit of a fingerprint expert of the Australian
Federal Police.
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Clause 181 provides that proof of the service, giving or sending under an
Australian law, of written notification, notices, orders and
direction may be proved by affidavit of the person who served,
gave or sent it.
CHAPTER 5--MISCELLANEOUS
Clause 182 contains no substantive provision. Its inclusion ensures parity in
section numbering with the Commonwealth Act.
Clause 183 allows a court to examine a document or thing in respect of
which a question has arisen in relation to the application of the
Bill and to draw reasonable inferences from the document or
thing.
Clause 184 enables a defendant in or before a criminal proceeding, to make
any admissions and give any consent that a party to a civil
proceeding can make. A defendant's consent will not be effective
in criminal proceedings unless he or she has been advised to
consent by his or her lawyer, or if the court is satisfied that the
defendant appreciates the consequences of doing so.
Clause 185 contains no substantive provision. Its inclusion ensures parity in
section numbering with the Commonwealth Act.
Clause 186 contains no substantive provision, however a Note to the clause
refers to provisions in the Evidence Act 1958 which relate to
swearing affidavits. The inclusion of this clause number ensures
parity in section numbering with the Commonwealth Act.
Clause 187 provides that, for the purposes of a law of the State, a body
corporate does not have a privilege against self-incrimination.
Clause 188 empowers a court to impound documents tendered or produced
before the court.
Clause 189 sets out the circumstances in which a voir dire (the determination
of a preliminary question in the absence of a jury) is to be held.
These include questions as to whether evidence should be
admitted or can be used against a person and as to whether a
witness is competent or compellable.
Clause 190 allows the court, with the consent of the parties, to waive the
rules relating to the manner of giving evidence, the exclusionary
rules and the rules relating to the method of proof of documents.
62
A defendant's consent will not be effective in a criminal
proceeding unless he or she has been advised to consent by his or
her lawyer, or the court is satisfied that the defendant understands
the consequences of the consent. The clause also enables a court
to make such orders in civil proceedings without the consent of
the parties if the matter to which the evidence relates is not
genuinely in dispute, or if the application of those rules would
cause unnecessary expense or delay.
Clause 191 applies where the parties to a proceeding have agreed that, for the
purposes of the proceeding, a fact is not to be disputed in the
proceeding. If the agreement is in writing, signed by or for all
the parties or, by leave of the court, stated before the court with
the agreement of all parties, evidence may not be adduced to
prove, rebut or qualify an agreed fact, unless the court gives
leave.
Subclause (3)(a) refers to Australian lawyers, legal counsel or
prosecutors (defined terms).
Clause 192 complements clauses of the Bill enabling a court to give any
leave, permission or direction on such terms as it thinks.
The clause sets out some of the matters the court must take into
account (for example, the extent to which to do so would unduly
lengthen the hearing). The court may take additional matters into
account.
Clause 192A deals with advance rulings and findings and implements
recommendation 16-2 of the 2005 LRCs' Report. It provides that
the court may, if it considers it appropriate, give an advance
ruling or make an advance finding in relation to the admissibility
of evidence and other evidentiary questions.
Paragraph (c) makes clear that the court may also make an
advance ruling or finding in relation to the giving of leave,
permission or directions under clause 192.
This clause addresses the finding of the High Court in TKWJ v
The Queen (2002) 212 CLR 124 that the UEAs only permit an
advance ruling to be made in cases where the UEAs requires
leave, permission or direction to be sought, but not to be made in
relation to the exercise of "discretions". The 2005 LRCs' Report
concluded that a broader power to make advance warnings was
important as it carries significant benefits in promoting the
efficiency of trials. This clause gives a broader power.
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Clause 193 provides that a court may make orders to ensure that a party can
adequately inspect documents that require interpretation by a
qualified person or from which sounds, images or writing can be
reproduced. The clause also extends the power of a person or
body to make rules of court in relation to the discovery,
exchange, inspection or disclosure of intended evidence,
documents and reports of persons intended to be called to give
evidence.
Clause 194 substantially replaces section 150 of the Evidence Act 1958,
section 415 of the Crimes Act 1958, and section 61 of the
Magistrates' Court Act 1989. The clause provides powers for
the court to issue a warrant to bring a witness before the court
who has failed to attend court, including circumstances where the
court is satisfied that the witness is avoiding service or is unlikely
to attend.
A Note to the clause provides that this section differs from the
New South Wales Act and that the Commonwealth Act does not
include such a provision.
Clause 195 makes it an offence to print or publish (without express court
permission) an improper question (see clause 41), or any question
disallowed by the court because the answer would contravene the
credibility rule (Part 3.7) or any question in respect of which
leave has been refused under Part 3.7. The maximum penalty for
the offence is a fine of 60 penalty units.
Clause 196 contains no substantive provision. Its inclusion ensures parity in
section numbering with the provisions in New South Wales
which include this provision.
Clause 197 enables the Governor in Council to make regulations for the
purposes of the Bill.
SCHEDULE 1
Oaths and Affirmations
Schedule 1 sets out the forms of oaths and affirmations that may be taken or
made by witnesses and interpreters.
DICTIONARY
The dictionary defines various words and expressions used in the Bill.
The 2005 LRCs' Report recommended changes which required amendment to
some definitions in the UEA. These are explained below. Otherwise, the
terms are not explained below.
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PART 1--DEFINITIONS
ACT Court
admission
asserted fact
associated defendant
Australia
Australian court
Australian law
Australian lawyer--
The definition is consistent with the National Legal Profession
legislation, which in Victoria is contained in the Legal
Profession Act 2004.
This definition (together with the definition of Australian legal
practioner) replaces the definition of lawyer contained in the
Dictionary of the UEAs. This is consistent with recommendation
14-3 of the 2005 LRCs' Report.
The term lawyer is defined in and only used for the purposes of
Part 3.10 on Privileges.
Australian legal practioner--
The definition is consistent with the National Legal Profession
legislation, which in Victoria is contained in the Legal
Profession Act 2004.
Australian or overseas proceeding
Australian Parliament
Australian practising certificate--
The definition is consistent with the National Legal Profession
legislation, which in Victoria is contained in the Legal
Profession Act 2004.
Australian-registered foreign lawyer--
The definition is consistent with the National Legal Profession
legislation, which in Victoria is contained in the Legal
Profession Act 2004.
Australian Statistician
business
case
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child
civil penalty
civil proceeding
client
coincidence evidence
coincidence rule
Commonwealth owned body corporate
Commonwealth record
confidential communication
confidential document
court
credibility of a person
credibility of a witness
credibility evidence--
The definition cross-references the definition of credibility
evidence in clause 101A.
credibility rule--
The definition cross-references the meaning of credibility rule in
clause 102.
criminal proceeding
cross-examination
cross-examiner
de facto partner--
The definition cross-references the definition of de facto partner
in Part 2 of the Dictionary.
document
electronic communication--
Electronic communication is defined by reference to the
Electronic Transactions (Victoria) Act 2000. This is in
accordance with recommendations 6-2 and 6-3 of the 2005 LRCs'
Report.
examination in chief
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exercise
fax
federal court
foreign court
function
government or official gazette
Governor of a State
Governor-General
hearsay rule
identification evidence
investigating official
joint sitting
judge
law
leading question
legal counsel
Legislative Assembly
Member (of the Australian Federal Police)
NSW court
offence
opinion rule
overseas-registered foreign lawyer
parent
picture identification evidence
police officer
postal article
previous representation
prior consistent statement
prior inconsistent statement
probative value
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prosecutor--
A definition of prosecutor is included in the Dictionary due to
the omission of a definition of lawyer from the Dictionary
(consistent with recommendation 14-3 of the 2005 LRCs'
Report).
public document
re-examination
representation
seal
tendency evidence
tendency rule
traditional laws and customs--
The inclusion of this definition implements recommendation 19-3
of the 2005 LRCs' Report.
The 2005 LRCs' Report concluded that "traditional laws and
customs" is the most appropriate term to be used and a "broad
definition of traditional laws and customs" was desirable.
The everyday meaning of a traditional law or traditional custom
is one which has been passed from generation to generation of a
society, usually by word of mouth and common practice.
However, in Members of the Yorta Yorta Aboriginal Community
v Victoria (2002) 214 CLR 422, the High Court of the Australia
held that for the purpose of the Native Title Act, traditional laws
and customs refers specifically to traditional laws and customs
whose content originates in the normative system of Aboriginal
and Torres Strait Islander societies prior to assertion of
sovereignty by the British Crown.
The 2005 LRCs' Report considered that for the purposes of the
UEAs, traditional laws and customs should not be limited to that
interpretation.
In accordance with the 2005 LRCs' Report, to ensure that the Bill
covers the full range of matters within the scope of traditional
laws and customs, a broad definition of traditional laws and
customs has been used. The definition contains a non-exhaustive
list of matters that includes customary laws, traditions, customs,
observances, practices, knowledge and beliefs of a group
(including a kinship group) of Aboriginal or Torres Strait
Islander people. This broader definition is intended to enable the
court to receive more diverse evidence, which can be used to
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prove the existence and content of particular traditional laws or
customs.
Further, the definition refers to "any of the traditions, customary
laws, customs" etc. of the group. This is intended to make it
clear that the exceptions to the hearsay and opinion rules apply to
traditions and customs generally, and not only to those whose
content has been shown to originate in traditional laws and
customs in force prior to the assertion of sovereignty by the
British Crown. It is impractical and inappropriate to require
courts to inquire whether the content of any given traditional
laws or custom has its origins before sovereignty, in order to
decide whether the exceptions may apply. Requiring such an
inquiry would be contrary to the purpose of the new exceptions,
which is to shift the focus away from technical obstacles to
admissibility, to whether the particular evidence is reliable, and
what weight it should be accorded.
Victorian court
visual identification evidence
witness
PART 2--OTHER EXPRESSIONS
1 References to businesses
Business is defined broadly and extends to statutory authorities.
2 References to examination in chief, cross-examination and
re-examination
3 References to civil penalties
4 Unavailability of persons
5 Unavailability of documents and things
6 Representations in documents
7 Witnesses
8 References to documents
8A References to offices etc.
9 References to laws
10 References to children and parents
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11 References to de facto partners
The definition of de facto partners implements recommendation
4-6 of the 2005 LRCs' Report in part. Clause 18 of the Bill,
which applies only in criminal proceedings, allows certain
categories of witness to object to giving evidence against the
accused. Witnesses who are entitled to raise the objection
include the accused's de facto partner.
The 2005 LRCs' Report recommended the introduction of the
term de facto partner as a gender neutral term and a definition
that covers same-sex couples, with no requirements for
cohabitation or adulthood.
This definition is intended to be a non-exhaustive list of factors
the court can refer to in determining whether a couple is in a
de facto relationship. It includes the factors or indicia
recommended by the 2005 LRCs' Report as well as additional
factors that are common to existing state and territory definitions
of de facto.
The definition of de facto partners in this Bill differs from the
Commonwealth and New South Wales Acts in that it provides
that a person is in a de facto relationship with another person if
those persons are in a registered relationship within the meaning
of the Relationships Act 2008.
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