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LAW OF EVIDENCE

LEC – Summer 2017/2018

Week 1

Introduction

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• What is this course about?

– The Law of Evidence

• How to adduce evidence

• Admissibility of evidence

• Proof

• What existing knowledge does it build on?

• Knowledge of application of legislation

• Knowledge of interpreting legislation, including

through case law

• Knowledge of substantive areas of law

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This Week• House keeping

– Objectives

– Lectures

– Assessment and homework

– Materials

– Cases not listed in the course outline are not compulsory reading.

YOU DON’T NEED TO READ THEM for the purpose of assessment

(but they are instructive of the principles and are handy to know)

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This Week• Introduction

– Background to the UEL (Uniform Evidence Law)

– Relationship between UEL and Common Law and other statutes

– Facts, evidence, inferences

– Taking objections

• Criminal Appeal Rules: r 4

– Dispensing with the rules of evidence – s 190

– Voir dire

– Leave on terms – s 192

– Advance rulings – s 192A

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House-keeping

• Objectives

– Course outline – p 1

• Lectures

– Course outline pp 3 - 5, 12 - 23

• Assessment

– Course outline pp 1 - 2

• Text and materials

– Course outline p 5

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Introduction

What is evidence law?

• The rules applied in courts relating to the receipt of

material to prove facts.

– What material a court may consider in determining

factual issues.

– How that material can be presented in the court.

– How the court decides the factual issues on the basis

of the evidence.

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Introduction

Where is evidence law from?

• Traditionally common law. Some rules have

existed from Middle Ages, but generally

developed by common law judges in 17c and 18c

– Complex rules relating to competency

– Hearsay

– Opinion

– Character evidence

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Introduction

Where is evidence law found now?

• UEL (Uniform Evidence Law) jurisdictions (i.e. jurisdictions that

have adopted an act that is largely the same as the Evidence Act

1995 (NSW)):

– NSW: 1995 (This course will focus on the NSW Act)

– Commonwealth: 1995

– Tasmania: 2002

– Norfolk Island: 2004

– Victoria: 2008 (NSW + Cth amended at same time)

– ACT: 2012

– Northern Territory: 2013

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Introduction

Where is evidence law found now?

• Queensland:

– Evidence Act 1977 (QLD). Covers:

• Witnesses and examination of witnesses

• Means of obtaining evidence

• Use of AV links

• Proof of documents

• Admissibility (limited)

• Reproduction of documents

– Common law

– QLRC Report no. 60 conducted ‘review’ of the UEL

• Tabled 2005 – it leaves open the adoption of the UEL and highlights some

of its advantages. But no action has been taken.

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Introduction

Where is evidence law found now?

• Western Australia:

– Mainly common law.

– Evidence Act 1906 (WA).

– WALA committee conducted review of the UEL

• Tabled 1996

• Recommended adoption of UEL with retention of some WA

provisions

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Introduction

Where is evidence law found now?

• South Australia:

– Mainly common law

– Evidence Act 1929 (SA). Covers:

• Witnesses and examination of witnesses

• Proof of documents

• Admissibility (limited)

• Reproduction of documents

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Introduction

Where is evidence law found now?

– Under s 79 of the Judiciary Act 1903 (Cth), the laws of each state or territory—

including the laws relating to procedure, evidence, and the competency of

witnesses—are binding on all courts exercising federal jurisdiction in that state or

territory. The effect of this is that the courts of the states and territories, when

exercising federal jurisdiction, apply the law of the state or territory rather than the

Evidence Act 1995 (Cth), except for those provisions that have a wider reach.

– The passage of the Evidence Act 1995 (Cth) therefore has had the effect of

achieving uniformity among federal courts wherever they are sitting, but there is no

uniformity among the states or territories when exercising federal jurisdiction.

– E.g.: a Brisbane barrister defending a client charged with a federal crime before

the Queensland Supreme Court would use that state’s evidence law; but would

use the Evidence Act 1995 (Cth) if appearing before the Federal Court, the

Federal Magistrates Court or the Family Court on a different matter the following

day.

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Background to the UEL

• Australian Law Reform Commission (ALRC), Evidence Interim

Report (No. 26) (1985)

– http://www.austlii.edu.au/cgi-

bin/sinodisp/au/other/lawreform/ALRC/1985/26.html?stem=0&sy

nonyms=0&query=alrc%20evidence

• ALRC Evidence Final Report (No. 38) (1987)

– http://www.austlii.edu.au/au/other/lawreform/ALRC/1987/38.html

• Uniform Evidence Law (ALRC Report No. 102, NSWLRC

Report No.112, VLRC Final Report, 2005)

– http://www.austlii.edu.au/au/other/lawreform/ALRC/2005/102.ht

ml#03

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Background to the UEL

Recent major amendments:

– From ALRC 102

– Model Uniform Evidence Bill was approved by the Standing

Committee of Attorneys-General in July 2007

– Evidence Amendment Act 2007 (NSW)

– Evidence Amendment Act 2008 (Cth)

– Commenced on 1 Jan 2009 (Victorian legislation adopted these

changes as well)

– Subsequent amendments have been made on a smaller scale.

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Relationship between the Evidence Acts, the

common law and other statues

The act is not a code:

• Does not affect the operation of other acts – s 8

– Commonwealth provision is more complex

• Does not affect operation of common law or equity unless done expressly

or by necessary intendment – s 9

– But it has been held to cover the field and therefore be a code in

relation to:

• Chapter 3 – Admissibility: Telstra Corp v Australis Media Holdings (No 2)

(1997) 41 NSWLR 346 (although this has been disputed)

• Competence and compellability: R v Grasby (2000) 115 A Crim R 465 –

See the language of s 12.

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Relationship between the Evidence Acts, the

common law and other statuesIs Chapter 3 a code?

• The uniform Evidence Acts do, however, arguably exclude the operation of other

laws regarding the admissibility of evidence and the competence and

compellability of witnesses. [See ss 12, 56(1)].

• As a consequence, there has been some judicial discussion as to whether Chapter

3 of the UEL functions as a code. Odgers has [previously] argued that Chapter 3

‘constitutes a code for the rules relating to the admissibility of evidence, in the

sense that common law rules relating to the admissibility of evidence are

abrogated’.[But see Odgers now at EA.Intro.120 – this appears to have changed]

• Section 56 has been cited by a number of judges as the ‘pivotal provision’

regarding the operation of the uniform Evidence Acts to admit or exclude evidence.

Telstra Corporation v Australis Media Holdings (No 2) (1997) 41 NSWLR 346, 349; Quick v

Stoland Pty Ltd (1998) 87 FCR 371, 373; Idoport Pty Ltd v National Australia Bank Ltd (2000)

50 NSWLR 640, 652; EI Dupont de Nemours & Co v Imperial Chemical Industries (2002) 54

IPR 304, [46].

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Relationship between the Evidence Acts, the

common law and other statuesIs Chapter 3 a code?:

Section 56 Relevant evidence to be admissible

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding

is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible.

• On this basis, Branson J suggested in Quick v Stoland Pty Ltd that:

‘Chapter 3 is designed to deal exhaustively with this topic and, in a practical

sense, constitutes a code relating to the admissibility of evidence in

proceedings to which the Act relates’.

• The issue has not been judicially resolved, with the discussion being limited to

comments in obiter dicta.

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Dispensing with the rules of evidence

Some rules can be dispensed with by consent – s 190(1):

– Part 2.1, Divisions 3, 4, 5

– Part 2.2, 2.3

– Part 3.2 – 3.8 (important admissibility sections)

• But consent in criminal proceedings is limited.

• Court can dispense with these provisions in civil proceedings –

s 190(2):

– If matter not genuinely in dispute.

– Application would involve unnecessary expense or delay.

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Taking Objections

Criminal Appeals Rules 1970 (NSW)

Made under the Supreme Court Act 1980 (NSW)

Rule 4 - Exclusion of certain matters as grounds for appeal etc

No direction, omission to direct, or decision as to the admission or

rejection of evidence, given by the Judge presiding at the trial, shall,

without the leave of the Court, be allowed as a ground for appeal or an

application for leave to appeal unless objection was taken at the trial to

the direction, omission, or decision by the party appealing or applying

for leave to appeal.

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The trial process

• People in the trial

• Role of the judge

– When sitting alone

– When sitting with jury

• Differences between civil hearings and criminal

trials - Dictionary

• Structure of a trial

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The trial process • Pre-trial processes;

– To what hearings does the Evidence Act apply? – s 4.

– To what extent does the Evidence Act apply to pre-trial

processes? – s 131A (we will look at this in detail in relation to

privilege).

• Court procedure – examination in chief/cross-examination.

• Role of judge versus jury.

• Appeal process – see extra material posted on where appeals go

and when

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The trial process

Structure of the Evidence Act:

• Chapter 1: Jurisdictional and other matters;

• Chapter 2: Form of evidence;

• Chapter 3: Admissibility of evidence;

• Chapter 4: Standards of proof;

• Chapter 5: Miscellaneous.

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The trial process

• Chapter 2 deals with the method of ‘adducing’ evidence

• ‘How do you get it in?’ rather than ‘can the court take it into

account?’ (which is dealt with in admissibility, Chapter 3)

– Witnesses: 2.1 (ss 12 – 46)

– Documents: 2.2 (ss 47 – 51)

– Other evidence: 2.3 (ss 52 – 54)

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Voir dire

• Section 189 – ‘hearing within a hearing’ to establish

preliminary questions.

– In criminal proceedings jury not to be present if relates to an

admission or potentially improperly obtained evidence – s 189(2)

– In other cases the jury is not to be present unless the court

orders – s 189(4). Factors listed in 189(5).

– Can be used in civil and criminal proceedings.

– In other circumstances common law determines when a voir dire

can occur and the procedural matters not dealt with by s 189.

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Leave permission on terms

Section 192 – Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the

leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding

whether to give the leave, permission or direction, it is to take into account:

(a) the extent to which to do so would be likely to add unduly to, or to shorten,

the length of the hearing, and

(b) the extent to which to do so would be unfair to a party or to a witness, and

(c) the importance of the evidence in relation to which the leave, permission or

direction is sought, and

(d) the nature of the proceeding, and

(e) the power (if any) of the court to adjourn the hearing or to make another

order or to give a direction in relation to the evidence.

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Leave permission on terms

Section 192 – Leave, permission or direction may be given on terms

• When does it apply?

– When a court is considering leave, permission or a direction.

– Identical language is not necessary for the section to apply (e.g. “direction”

includes “order”).

• These matters must be taken into account, at least where they are material to

the issue.

– Stanoevski v The Queen (2001) 202 CLR 115 (KOP [12.90]) (see later)

• But, it has been held that: ‘unless the contrary may be inferred from the

circumstances or from what the judge does say, it should be assumed that a

judge hearing a case will continually be having regard during the course of a

hearingU to the matters in s 192(2).’

– R v Reardon (2002) 186 FLR 1.

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Leave permission on terms

Section 192 – Leave, permission or direction may be given on terms

• But the opposite position has also been taken, requiring a judge to mention

them, if only to say one or more are not relevant, and failing to do so is an error.

– R v Esho; R v Sako [2001] NSWCCA 415

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Advance rulings and findings

Section 192A – Advance rulings

Where a question arises in any proceedings, being a question about:

(a) the admissibility or use of evidence proposed to be adduced, or

(a) the operation of a provision of this Act or another law in relation to

evidence proposed to be adduced, or

(a) the giving of leave, permission or direction under section 192,

the court may, if it considers it to be appropriate to do so, give a ruling or

make a finding in relation to the question before the evidence is adduced in

the proceedings.