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4 Curiosities of Victorian evidence law

Feature Articles

Cite as: (2006) 80(8) LIJ, p. 36

Four 19th century peculiarities of Victorian evidence law have mixed Anglo-American parentage, and no collective equivalents elsewhere in Australasia.

By Greg Taylor

Four 19th century peculiarities of Victorian evidence law have mixed Anglo-American parentage, and no collective equivalents elsewhere in Australasia.
By Greg Taylor

As a South Australian teaching Evidence here in Victoria, my attention was drawn to four provisions of the Evidence Act 1958 (Vic) which exist together only in this state.
They are:

  • the privilege for confessions to the clergy in criminal and civil cases: s28(1);
  • the privilege for patients of medical practitioners in civil cases: s28(2)–(5);a
  • the limitation of the privilege against self-incrimination (and associated privileges) at trial to cases in which the offence that the witness might reveal is treason or an indictable offence: s29; and
  • the provision that a confession is to be admitted despite inducements offered to the confessor unless “the inducement was really calculated to cause an untrue admission of guilt to be made”: s149.

In the rest of Australasia, some of these provisions can also be found in isolation. The across-the-board override of the privilege against self-incrimination for summary offences is not matched anywhere else, but several jurisdictions now provide for priest/penitent or medical practitioner/patient privileges, or both.[1 ] The provision about inducements being really calculated to cause an untrue confession has a counterpart in New Zealand,[2 ] but it has not been copied anywhere else, probably because the common law has largely caught up with what it aimed to achieve.[3 ]

Research reveals, however, that Victoria enacted each innovation in 1857, far earlier than the other jurisdictions. The existence of so many noteworthy provisions so early on in one jurisdiction arouses the curiosity of the legal historian. Until now, “no-one has been able to find the real reason for the introduction of such [provisions] into Victorian statute law”.[4 ] And as the Evidence Act 1958 may shortly be replaced by a statute modelled on the federal Evidence Act 1995,[5 ] some record of innovations first introduced in Victorian law should be made.

Victorian enactment

All four innovations were introduced together in Act No 8, assented to on 9 July 1857 – “An Act to consolidate and amend the Law of Evidence”. Section 11 of that Act limited the privilege against self-incrimination; s18 conferred the two new privileges for confessions to the clergy and patients of medical practitioners; s19 enacted the provision about inducements. Each of these sections was in virtually the same language as that found today (except that the privilege against self-incrimination continued for felonies rather than indictable offences – a difference which is explained by the later abolition of the historical classifications in Victoria). Given this outbreak of creativity on the part of the infant Parliament of Victoria, one wonders whether it thought of all these innovative things itself.

As is often (but not always) the case with early colonial legislation, an extensive search reveals that these provisions were in fact cribbed from somewhere else. All may be found in the Law of Evidence and Procedure Amendment Bill 1856, which was introduced into the House of Commons in the early hours of the morning of 26 April 1856.[6 ] Clauses 11, 13, 15 and 16 of that Bill[7 ] are so similar to the Victorian sections, even to this day, that there is no need to set them out here. There were some very minor differences: for example, clause 16 of the English Bill gave a privilege to apothecaries (the equivalent of the modern pharmacist) as well as to physicians and surgeons; cl 11 mentioned felonies only, not treason. But the coincidences in wording are otherwise so great that there is no possible conclusion other than that the English Bill was copied a few months later in Victoria.

The English Bill sank without trace in England. It received a second reading in the House of Commons, but was never considered at committee stage. During 1856, proposals to consider the Bill in committee were put off 12 times,[8 ] mostly in the early hours of the morning, until Parliament was prorogued[9 ] and the Bill lapsed. It does not seem to have been introduced again, and its innovations attracted little public attention.[10 ] But they found a home in Victoria.[11 ] Someone in Victoria saw the latest English Evidence Bill, decided that it contained good ideas and incorporated them almost word-for-word into the Victorian Bill that was introduced at the end of 1856. This was not an unusual process in 19th-century Australia: often the colonies adopted what they thought were going to be English innovations in advance of the English. In 1891, Victoria adopted a statute permitting the accused to give evidence which is very similar to the English Criminal Evidence Act 1898.[12 ]

The person responsible for transforming our four innovations from English proposals to Victorian realities was probably Thomas Fellows (later Mr Justice Fellows), Solicitor-General in the ministry of Victoria’s first Premier, William Haines, from mid-1856. It was he who introduced the Bill into Parliament; we first hear of it on 26 November 1856,[13 ] when the English proposal can have been known in the colony for only a few months. It is quite striking, however, how little debate there was on the Bill. There is a record of a division in Parliament only on the question of the medical practitioners’ privilege, which passed narrowly by 14 votes to 12,[14 ] but no record of what was actually said in that debate.[15 ] Nor is there any record of extra-parliamentary debate: a leader in The Argus[16 ] on the Bill does not mention our changes.

This lack of debate is quite remarkable, for two reasons. First, the innovations, while scarcely a revolution in jurisprudence, were not without importance. The provisions enlarging the admissibility of confessions and restricting the privilege against self-incrimination affected common-law rights and should have been considered at length by a vigilant Parliament.[17 ] Even though they were contained in a government Bill,[18 ] the party system was far from fixed at this stage. Second, the innovations were enacted at a time when sectarian tensions were far from unknown in Victoria. Some mention of the obvious special interest of the Roman Catholic Church in the priest/penitent privilege might have been expected, and out-and-out Protestants might have objected. But we have nothing. Possibly some conciliation of the Irish-Catholic element was aimed at by the priest/penitent privilege, and it was not thought necessary to say this publicly.

The churches, the obvious possible lobbyists for a priest/penitent privilege, were also silent. A search in the archives of the Roman Catholic Archdiocese of Melbourne produces nothing about the Bill. Nor is there anything in the records of the Anglican Church[19 ] – although, given that the Bishop of the time, Charles Perry, was opposed to the movement (then in its infancy anyway) for re-introducing into the Anglican Church some of the practices lost at the Reformation, and indeed refused to ordain one man partly because of doctrinal disputes about confession,[20 ] it is unsurprising that he did not demand a priest/penitent privilege. That does, however, make it all the more surprising that the measure was introduced by an Anglican Solicitor-General[21 ] as a member of a Cabinet consisting entirely of Anglicans.[22 ] Equally surprising is that, when Mr Haines was succeeded as Premier on 11 March 1857 by John O’Shanassy,[23 ] a Roman Catholic, no discernible acceleration of the Bill’s progress through Parliament resulted. In fact, it was passed only after Mr Haines again took over as Premier on 29 April.

The fact that the Bill contained innovations that had very recently been proposed at Westminster no doubt also helped to stifle objections. That may also be the reason why, on its enactment, the Bill’s innovations provoked no comment from the Colonial Office, other than a passing notice of the restriction of the privilege against self-incrimination.[24 ] The Colonial Office was, however, offended by the Act’s purporting to repeal an Imperial statute unrelated to our four innovations, as a result of which the Act had to be re-enacted in 1860 sans the offending provision.[25 ] Even then, there was a debate only about the detail, not the principle, of providing a privilege to the clergy,[26 ] and none at all on the other three innovations.

There seems to have been a remarkable level of agreement on (or apathy about) the introduction not only of the priest/penitent privilege, but of all the four innovations, a situation which not even two changes of government could disturb.

Varied heritage

The real authors of the Victorian innovation are, however, those responsible for introducing the Bill of April 1856 into the House of Commons. They were Sir Fitzroy Kelly QC, Lord Stanley (later the 15th Earl of Derby) and Mr GM Butt QC – solid establishment figures and Conservatives, although Conservatives who were far from hostile to sensible gradual law reform.[27 ] (The Bill had nothing to do, however, with Lord Brougham’s indefatigable efforts to reform the law that were going on at about the same time.)[28 ]

Although Mr Butt QC plays only a very minor role in English history – elected in 1852, he lost his seat in 1857[29 ] – the other two proposers attained some eminence. The 15th Earl of Derby, as Secretary of State for the Colonies, squashed Queensland’s attempt in the early 1880s to annex south-eastern New Guinea without Imperial approval; and Sir Fitzroy Kelly QC was the last Chief Baron of the Exchequer. We do not know why they lost interest in the reforms of evidence law they proposed in 1856. Possibly the Bill was really Mr Butt QC’s idea, and the other two proposers were there only to lend lustre to his Bill, which then lapsed when he was no longer around to promote it.

Nor do we know, for that matter, exactly why they proposed the reforms. There is no second reading speech in Hansard.[30] Their Bill expressly extended to Ireland,[31] so they too might have wished to conciliate Roman Catholic opinion, something which clearly would have been congenial to Lord Stanley at least.[32 ]

They were also clearly inspired by statutes in the United States offering privileges to the clergy and medical practitioners. Those American statutes were models for the English Bill in some respects – for example, New York’s Field Code of 1850[33 ] and the English Bill and Victorian Act all confer the medical practitioners’ privilege for information “acquired in attending the patient [and][34 ] which was necessary to enable him to prescribe or act for the patient”. In its turn, the Field Code replaced statutes of New York from 1828. The 1828 wording[35 ] is recognisably the ancestor of that in the Field Code; it is the ultimate progenitor of the two privileges to be found in s28 of the Evidence Act 1958.

But there does not seem to be any precedent in American statutes for the other two innovations. The Victorian innovations in the evidence law of 1857 accordingly might be said to have American grandparents on one side and otherwise to be of English ancestry.

GREG TAYLOR is a senior lecturer in law at Monash University. The author would like to thank the many people who assisted with the research for this article.

[1] See Fisher, “Clergy confidentiality and privileges: themes and prospects” in Radan et al (eds), Law and Religion: God, the state and the common
law, Routledge, 2005; Heydon, Cross on Evidence (7th Australian edn), Butterworths, 2004, pp844-7; on the common law, see Nokes, “Professional privilege” (1950) 66 LQR 88.

[2] Evidence Act 1908 (NZ), s20.

[3] See, e.g., R v Bodsworth [1968] 2 NSWR 132. The Victorian statute is now rarely used: Windus v Wade [1999] VSC 414, [20] per Warren J. It was, however, cited recently in R v Roberts (2004) 9 VR 295, 312f, 314f.

[4] Victorian Parliamentary Debates, 28 April 1966, 3754f (referring to the medical privilege only).

[5] See Australian Law Reform Commission Discussion Paper No 69, New South Wales Law Reform Commission Discussion Paper No 47, Victorian Law Reform Commission Discussion Paper, Review of the Uniform Evidence Acts.

[6] Journals of the House of Commons, 25/26 April 1856, 160.

[7] Reproduced in House of Commons Sessional Papers, 1856, vol V,
523, 528f.

[8] Journals of the House of Commons, 19/20 May 1856, p198; 22/23 May 1856, p207; 26/27 May 1856, p219; 30/31 May 1856, p226; 2/3 June 1856, p231; 6/7 June 1856, p244; 12/13 June 1856, p261; 23 June 1856, p288; 23/24 June 1856, p291; 26/27 June 1856, p301; 2 July 1856, p316; 9 July 1856, p332.

[9] Journals of the House of Commons, 29 July 1856, p395.

[10] See, for example, “Procedure and Evidence Bill” (1856) 27 LT 73; The Times, 2 May 1856, p12. There is nothing at all in the Law Magazine for the period.

[11] And also, at least in part, in Hawaii in 1876: hrscurrent/Vol13_Ch0601-0675/HRS0626/HRS_0626-0001-0506__anno.htm (visited 24 February 2005). Inquiries made by the author with Prof John Barkai and Prof Avi Soifer of the University of Hawaii, and Myra Shozuya of the Legislative Reference Bureau of the Hawaiian government, have revealed that the provenance of the original Hawaiian statute is, apparently, unknown.

[12] Taylor, “The Accused Persons Evidence Act 1882 of South Australia: a model for British criminal law?” (2002) 31 CLWR 332, 363.

[13] Victorian Parliamentary Debates, 26 November 1856, 21.

[14] The Age, 22 January 1857, p6.

[15] Victorian Parliamentary Debates, 21 January 1857, 232.

[16] 3 January 1857, 4. See also The Herald, 5 January 1857, p5.

[17] A hint that some debate might have occurred is in The Age, 17 June 1857, p6, although one might conclude from this brief reference that it was not very extensive. There was “some discussion” according to The Herald, 17 June 1857, p5.

[18] CO309/42/491 (AJCP reel 827).

[19] Email to the author from Leonie Duncan, 12 January 2005.

[20] Robin, Charles Perry, Bishop of Melbourne (University of Western Australia Press, 1967), pp135–40, 159.

[21] Fellows S-G was “a devout Anglican”: Australian Dictionary of Biography, vol 4, p161. See also Cuthbert, Christ Church in South Yarra: A social history 1850-1990 (Christ Church vestry, South Yarra, 1996), pp10, 20.

[22] Parkinson, Sir William Stawell and the Victorian Constitution (Australian Scholarly Publishing, 2004), pp1, 4–10; Thomson & Serle, A Biographical Register of the Victorian Legislature 1851-1900 (Australian National University Press, 1972).

[23] The composition of the various Ministries can be followed in the Victorian Government Gazette, 28 November 1855; 17 June 1856, p1019; 28 June 1856; 4 July 1856, p1116; 26 February 1857; 11 March 1857; 29 April 1857.

[24] CO309/42/490ff (AJCP reel 827); VPRS1087/P0000/10/V2/847-852.

[25] Victorian Parliamentary Debates, 2 December 1859, 138; 26 January 1860, 419.

[26] Victorian Parliamentary Debates, 9 December 1859, 202.

[27] See the biographies of Sir F Kelly and the 15th Earl of Derby (Edward Henry Stanley) in the Dictionary of National Biography (OUP, 2004); Holdsworth, History of English Law (Methuen, 1965) vol XV, p483.

[28] It is not mentioned in Eardley-Wilmot, Lord Brougham’s Acts and Bills from 1811 to the Present Time (Longman, 1857).

[29] Senton, Who’s Who of British Members of Parliament (Harvester, Hassocks, 1976), vol 1, p59f.

[30] 19 May 1856, col. 325.

[31] Clause 44.

[32] See Stanley’s biography, note 27 above.

[33] Code of Civil Procedure of the State of New York, s1710(3), (4). See also Michigan Revised Statutes (1846) ch 102 s86; Missouri Revised Statutes (1854), ch 186 s20; Wisconsin Revised Statutes (1849), ch 98 s75.

[34] This word is not in the Field Code.

[35] Quoted and placed in historical context in Cox v Miller (2002) 296 F (3rd) 89, 103; “Developments in the law – privileged communications” (1985) 98 Harv LR 1450, 1532 fn 8; Reese, “Confidential communications to the clergy” (1963) 24 Ohio State LJ 55, 57; Yellin, “The history and current status of the clergy-penitent privilege” (1983) 23 Santa Clara LR 95, 106.


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