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ALRC: Clearing hurdles to harmony

Every Issue

Cite as: (2004) 78(10) LIJ, p. 78

The ALRC review into the Evidence Act 1995 (Cth) considers the distinction between jury and non-jury trials and width of judicial discretion to exclude evidence.

The Australian Law Reform Commission’s (ALRC) recently announced review into the uniform Evidence Act 1995 (Cth) (the Act) has raised a number of general issues around the operation of the legislation. One issue for consideration is whether there should be a greater distinction in the Act between jury and non-jury trials and a second concerns the width of judicial discretions to exclude evidence under the Act.

Jury and non-jury trials

While the Act contains some provisions dealing specifically with juries – including those dealing with the presence (or absence of the jury) where preliminary questions are heard and determined, and concerning judicial directions to juries – the Act does not generally distinguish between trials heard by a judge alone and those heard by a judge and jury.

The argument for separate rules is, in essence, that a more flexible and less exclusionary system can be used for non-jury trials. Judges and magistrates, through training and experience are often said to be less susceptible than jurors to misusing evidence such as hearsay or character evidence.

In its earlier inquiry into the law of evidence which led to the passage of the Evidence Act, the ALRC concluded that it should not be assumed that there is necessarily such a difference between the abilities of judges and jurors that different rules should be developed for jury and non-jury trials. Rather, for the purposes of evidence law, the distinction between civil and criminal trials was seen as the more important distinction. The ALRC noted that, regardless of whether the trial is with a jury or not, there may be other reasons why doubtful evidence should be excluded from criminal trials except in clearly defined circumstances. Further, considerations of time, cost and fairness – none of which have any connection with the quality of the tribunal – were said to warrant control over unreliable and dangerous evidence.

More recent inquiries have considered whether different rules of evidence should apply to non-jury trials. The Law Reform Commission of Western Australia (LRCWA), as part of a review of the criminal and civil justice system, considered whether the general applicability of exclusionary rules of evidence should be varied. The LRCWA proposed initially that a dual system of rules of evidence should be introduced, with one set of rules applying to jury trials, and one to non-jury trials. However, the LRCWA later withdrew this proposal, noting that such a dual system of rules and procedure “may create further complexity in the already highly complex laws of evidence and undermine public confidence in jury trials”.

As the president of the ALRC, Professor David Weisbrot, said when announcing the ALRC’s inquiry, “It would be a radical step, [to have two different sets of rules] so we’ll be canvassing the opinions of judges, lawyers and interested members of the community to find out the full range of views before making any recommendations for reform.”

It has been suggested that, rather than developing a dual system of rules of evidence, the Act might be reformed to allow rules of evidence to be waived in non-jury trials. At present, under s190, the court may dispense with the application of certain rules of evidence, but only if the parties consent. The issue of whether there should be a general discretion to allow the court to dispense with rules of evidence in non-jury trials raises the issue of judicial discretions within the Act.

Judicial discretions

In its earlier report, Evidence (ALRC 38, 1987), the ALRC described the policy behind its approach as being to attempt to draft rules as its first option, but where this was not possible, to formulate judicial discretions. ALRC 38 concluded that, particularly in relation to admissibility of evidence, there should be a policy of minimising judicial discretions.

However, in its initial consultations for the present inquiry, the ALRC has heard some concerns about the width of the judicial discretions to exclude evidence under the Act.

There have been some suggestions that these discretions should be narrowed or made more certain, for example in relation to the exclusion of evidence because of the inability of a party to cross-examine on it.

Issues paper

The ALRC, which is conducting its inquiry in cooperation with the New South Wales Law Reform Commission, expects to release an issues paper later this year. The Act operates in federal courts throughout Australia and in the courts of New South Wales, Tasmania and the Australian Capital Territory.

The ALRC is consulting with practitioners and judges who have worked with the uniform legislation with a view to ascertaining their experience of the legislation. Because one of the purposes behind the review is to seek greater harmonisation of evidence laws in Australia, the inquiry is also conducting consultations in other jurisdictions, including Victoria, to seek to identify the barriers to greater harmonisation.

Any person or organisation wishing to be added to a mailing list for the inquiry, or wanting to make a submission about the issues raised, can contact the ALRC.

Contributed by the AUSTRALIAN LAW REFORM COMMISSION, GPO Box 3708, Sydney 2001, tel (02) 8238 6333, fax (02) 8238 6363, email, website


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