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ALRC: Fine-tuning uniformity

Every Issue

Cite as: (2005) 79(9) LIJ, p. 81

The community has been asked to comment on a joint discussion paper which reviews the uniform Evidence Acts.

On 4 July 2005, the Australian Law Reform Commission (ALRC), New South Wales Law Reform Commission (NSWLRC) and Victorian Law Reform Commission (VLRC) (the Commissions) released a joint discussion paper on their review of the “uniform Evidence Acts”.[1]

The Commissions have not interpreted the current inquiry as an invitation to review all aspects of the uniform Evidence Acts. Rather, they have been interested in identifying those parts of the uniform Evidence Acts that may benefit from some fine-tuning. Based on the submissions received, and the meetings and consultations held to date, it appears that there are no major structural problems with the legislation or with the policy underpinning it. Nevertheless, a range of significant proposals are being considered.

Adducing evidence

The discussion paper examines the concept of competence and makes proposals in relation to the giving of unsworn evidence and to define “de facto spouse” for compellability purposes in criminal proceedings.

A number of issues are considered in relation to the examination and re-examination of witnesses. Some proposals have been made in relation to the giving of evidence in narrative form, cross-examination of unfavourable witnesses and cross-examination of vulnerable witnesses.

The uniform Evidence Acts introduced significant changes with respect to the proof of documents. A proposal is made to update the Acts to reflect the definition of an “electronic communication” in the Electronic Transactions Act 1999 (Cth) and cognate state and territory legislation.

Admissibility of evidence

The rules pertaining to the admissibility of evidence are the subject of a number of proposals. In particular, the discussion paper makes proposals for reform of the hearsay provisions. These include that the uniform Evidence Acts should be amended to confirm that s60 operates to permit evidence admitted for a non-hearsay purpose to be used, subject to the exercise of the discretionary provisions, to prove the truth of the facts asserted in the representation, whether or not the evidence is first-hand or more remote hearsay.

However, in view of concerns about the operation of s60 in relation to factual histories forming the basis of expert opinion evidence and admissions that are not first-hand, the discussion paper asks whether the uniform Evidence Acts should also be amended so that these categories of evidence are excluded from the ambit of s60.

Another significant proposal affecting the hearsay provisions is that the uniform Evidence Acts should be amended to make it clear that the legislative concept of “fresh in the memory”[2] is to be determined by reference to factors in addition to the time that has elapsed between the occurrence of an asserted fact and the making of a representation about the asserted fact.

The discussion paper examines the exceptions to the opinion rule, including expert opinion evidence. Submissions and consultations have identified the admissibility of expert opinion evidence as a significant issue in this inquiry. The discussion paper proposes amendment of the uniform Evidence Acts to provide an explicit exception for expert opinion evidence on the development and behaviour of children.

Detailed proposals are made to clarify and improve the provisions relating to tendency and coincidence evidence. The Commissions consider whether, for criminal trials, s101 should be replaced by a provision which relies on “the interests of justice” as the test for admissibility. The Commissions conclude that this is not an option that should be adopted.

The credibility rule and exceptions to the credibility rule have also been the subject of attention. Evidence relevant to credibility may include character evidence of a witness, evidence of inconsistent or consistent statements and evidence that shows a witness’ capacity for observation. The discussion paper examines a number of concerns about the credibility rule and its operation, including the articulation of the rule in s102, and makes detailed proposals for amendment.

Detailed proposals are also made to amend the client legal privilege sections of the uniform Evidence Acts. The aim is to clarify unclear terms or, in some cases, align the Acts with developments at common law which are supported by the Commissions.

The inquiry timetable

The ALRC and NSWLRC are each due to present a final report, containing final recommendations, to their respective Attorneys-General by 5 December 2005. It is planned that the ALRC, NSWLRC and VLRC will produce a joint final report by this date.

In order to be considered for use in the final report, submissions addressing the questions and proposals in the discussion paper must reach the Commissions by Friday, 16 September 2005. Details about how to make a submission are set out in the discussion paper, which is available from the ALRC and online at http://www.alrc.gov.au.


Contributed by the AUSTRALIAN LAW REFORM COMMISSION, GPO Box 3708, Sydney 2001, ph (02) 8238 6333, fax (02) 8238 6363, email info@alrc.gov.au, website http://www.alrc.gov.au.

natlawreform@liv.asn.au


[1] The uniform Evidence Acts are the Evidence Act 1995 (Cth), the Evidence Act 1995 (NSW) and mirror legislation enacted more recently in Tasmania and Norfolk Island: Evidence Act 2001 (Tas) and the Evidence Act 2004 (NI).

[2] Uniform Evidence Acts s66.

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