Finlay, Anne --- "Reviewing the Evidence Act 1995: the New ALRC Inquiry" [2004] ALRCRefJl 29; (2004) 85 Australian Law Reform Commission Reform Journal 47

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Reform Issue 85 Summer 2004/05

This article appeared on pages 47-49 & 61 of the original journal.

Reviewing the Evidence Act 1995

By Anne Finlay*

In 1995, the law of evidence as it applied in federal courts and courts of the ACT and NSW, underwent a radical change with the passage of the Evidence Act 1995 (Cth) and (NSW).

Since then, Tasmania has enacted similar legislation, the Evidence Act 2001 (Tas), as has Norfolk Island, Evidence Act 2004 (NI).¹ These uniform Evidence Acts were the product of an extensive research effort by the ALRC that began in 1979 and culminated in 1987 in a final report, Evidence (ALRC 38) and draft legislation. This draft legislation became the basis of—but with some differences—the uniform Evidence Acts.

ALRC 38 described its proposed legislation as ‘of far-reaching importance’ and of ‘considerable significance to the investigation of crimes and the protection of civil liberties’.² The ALRC recommended that the operation of the proposals be monitored. In what is the first major review of this legislation, the ALRC has been asked by the federal Attorney-General to conduct an inquiry into the operation of the Evidence Act 1995 (Cth) and to report by 5 December 2005. In line with its usual practice, the ALRC will have an extensive public consultation process. It released an Issues Paper in December, Review of the Evidence Act 1995 (IP 28), and plans to release a Discussion Paper in mid-2005.

The Inquiry has been conceived from the outset as a ‘joint venture’ with the New South Wales Law Reform Commission (NSWLRC), with both Commissions working in association with a view to producing agreed recommendations.

Terms of Reference

The Terms of Reference require the ALRC to pay particular regard to:

• the examination and re-examination of witnesses, before and during proceedings;

• the hearsay rule and its exceptions;

• the opinion rule and its exceptions;

• the coincidence rule;

• the credibility rule and its exceptions; and

• privileges, including client legal privilege.

The ALRC is also directed to consider the relationship between the Evidence Act and other legislation regulating the laws of evidence, and whether the fact that significant areas of evidence law are dealt with in other legislation poses any significant disadvantages to the objectives of clarity, effectiveness and uniformity.

Breadth of the Inquiry

The ALRC’s original Evidence Inquiry was lengthy and comprehensive. Although the topics identified in the Terms of Reference for this Inquiry are broad, the ALRC has not interpreted this to mean that all aspects of the uniform Evidence Acts must be reviewed. Rather, the ALRC is interested to identify those parts of the Acts that may benefit from some fine-tuning in the light of experience. In meetings and consultations to date, the ALRC has not heard that there are major structural problems with the legislation or that the policy underpinning it generally is no longer relevant.

Accordingly, the Issues Paper generally identifies specific provisions of the uniform Evidence Acts that have raised issues about their interpretation or about their operation. For example, it has been suggested that the hearsay provisions of the uniform Evidence Acts are unclear in certain respects and may benefit from clarification in the light of experience since enactment.

However, there are two issues that, depending on responses to the Issues Paper, could involve more substantial recommendations for reform. These are whether the Acts ought to make a greater distinction between jury and non-jury trials and whether the application of the legislation in the area of privilege should be widened to include pre-trial matters.

Lack of uniformity

In conducting its Inquiry, the ALRC is asked to have regard to the desirability of achieving greater clarity and effectiveness and promoting greater harmonisation of the laws of evidence in Australia. Lack of harmonisation of evidence laws in Australia is an important issue because, as discussed above, only federal courts and courts in NSW, the ACT, Tasmania and Norfolk Island have adopted the uniform scheme. In those states and territories that have not adopted the uniform legislation, the law of evidence is a mixture of statute and common law together with applicable rules of court.

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.³ The effect of this is that courts of these states and territories, when exercising federal jurisdiction, apply the evidence law of the state or territory rather than the law applying under the uniform legislation, except for a small number of 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. As a practical example, a Melbourne barrister defending a client charged with a federal crime before the Victorian Supreme Court would use that state’s evidence law; but would use the Commonwealth Act if appearing before the Federal Court on a different matter the following day.

In conducting its review, the ALRC will be seeking the views of judicial officers, legal practitioners and other relevant stakeholders in those states and territories that have not adopted the uniform legislation with a view to ascertaining whether, and to what extent, reform of the existing legislation might encourage its wider enactment.

Policy behind the uniform Evidence Acts

ALRC 38 stated that its proposals were predicated on the continuation of the trial system.⁴ In particular, it emphasised two features of that system. One was the jury system and the other was the adversary nature of the civil and criminal trial.

Jury and non-jury trials: One of the central approaches to evidence recommended by ALRC 38, and adopted in the uniform Evidence Acts, was not to distinguish between jury and non-jury trials per se but to draw a distinction between criminal and civil proceedings. Although the Acts contain 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—they do not generally distinguish between trials by judge and jury (jury trials) and trials by judge alone (non-jury trials). The ALRC concluded that, on the available evidence, 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 more important.⁵

The ALRC also 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 has any connection with the quality of the tribunal—were said to warrant control over unreliable and dangerous evidence.⁶

Some other recent inquiries have considered whether different rules of evidence should apply to non-jury trials. The Law Reform Commission of Western Australia (LRCWA) considered, as part of a review of the criminal and civil justice system, 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.⁷ 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’.⁸

Although the ALRC has indicated that its Inquiry is expected to focus on the detail of the uniform Evidence Acts, the Issues Paper does ask whether the legislation should be amended to allow more differentiation between rules of evidence applying in jury and non-jury trials.

Adversary system: ALRC 38 argued that the nature of the adversary system meant that rules were important to guide and control the proceedings; that rules allowed predictability about what evidence is necessary and admissible so as to enable parties to prepare their cases for trial with reasonable confidence, and to be able to assess their prospects for success; and that without a body of rules, control of trials through an appeal system and appellate review would be unpredictable. However, ALRC 38 also acknowledged that rules can be rigid in their application and concluded that the preferable approach was to draft rules as a first option but, in default, to use discretions.⁹ Without re-opening this whole issue, the Issues Paper does pose some questions about the use of particular discretions.

Privilege

A privilege is a right to resist disclosing information that would otherwise be ordered to be disclosed.¹⁰ Privileges are generally established as a matter of public policy. For example, client legal privilege is premised on the principle that it is desirable for the administration of justice for clients to make full disclosure to their legal representatives so they can receive the right legal advice and therefore this information is protected from being disclosed. The uniform Evidence Acts govern the law of privilege during a trial. However, issues of privilege arise before a trial commences such as in the production of documents before a trial (including in respect to an application for discovery or the issue of a subpoena), the answering of interrogatories, the giving of testimony or in the course of an administrative investigation. Such pre-trial matters are governed by the common law.

It has been strongly suggested to the Inquiry that it is unsatisfactory to have two sets of laws applying concurrently to privileges and that the uniform Evidence Acts require urgent reform in this regard. The Issues Paper asks whether the legislation should be amended to make express provision for client legal privilege to apply in contexts such as pre-trial discovery and the production of documents in response to a subpoena and non-curial contexts such as search warrants.

Conclusion

The ALRC’s original review of evidence is regarded as one of its most significant inquiries. Its recommendations led to fundamental changes in the rules of evidence in those jurisdictions that adopted the legislation and its two reports from the Inquiry have been treated as authoritative texts on evidence. However, the adoption of the legislation in only some Australian jurisdictions has led to an unfortunate lack of harmony in the rules between the states and between the federal courts and some of the states. In undertaking its review, the ALRC will be seeking to identify whether there are areas where some change might encourage a wider participation in the uniform Evidence Acts scheme.

* Anne Finlay was a full-time ALRC Commissioner between 2001 and 2004. She was the lead Commissioner in the initial stages of the current ALRC Evidence Inquiry and is now a member of the Evidence Advisory Committee. She is based at the University of Newcastle School of Law.

Endnotes

1. Collectively these Acts are known as the uniform Evidence Acts.

2. Australian Law Reform Commission, Evidence, ALRC 38 (1987), [19].

3. Except as otherwise provided by the Constitution or the laws of the Commonwealth.

4. Australian Law Reform Commission, Evidence, ALRC 38 (1987), [28].

5. Australian Law Reform Commission, Evidence, ALRC 38 (1987), [28]; Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [79].

6. Australian Law Reform Commission, Evidence, ALRC 38 (1987), [28].

7. Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System: Collected Consultation Drafts (1999), Ch 1.3; Proposal 7.

8. Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System: Final Report (1999), [7.6].

9. Ibid, [28].

10. J Gans and A Palmer, Australian Principles of Evidence (2nd ed, 2004), 91.