McCrimmon, Les; Alston, Bruce --- "Reviewing the Evidence Act 1995: Some Emerging Themes" [2005] ALRCRefJl 17; (2005) 86 Australian Law Reform Commission Reform Journal 63

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Reform Issue 86 Winter 2005

This article appeared on pages 63 – 66 of the original journal.

Reviewing the Evidence Act 1995: Some emerging themes

By Les McCrimmon and Bruce Alston*

In July 2004, the Commonwealth Attorney-General asked the Australian Law Reform Commission (ALRC) to review the operation of the Evidence Act 1995 (Cth).

The Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW) were enacted in 1995 in response to the ALRC’s 1987 Report No 38 on the law of evidence and are referred to in this article as the uniform Evidence Acts (UEA).¹

The New South Wales Law Reform Commission (NSWLRC) received a similar reference to review the operation of the Evidence Act 1995 (NSW). Other law reform commissions, including those in some of the remaining non-UEA jurisdictions are now also engaged in a national initiative (see box).

In December 2004, the ALRC released Issues Paper 28 (IP 28). IP 28 identifies the main issues relevant to the review, and provides background information and 100 questions designed to encourage informed public participation. IP 28 follows the organisation and structure of the UEA. Topics addressed include:

• examination and cross-examination of witnesses;

• documentary evidence;

• the hearsay rule and its exceptions;

• the opinion rule and its exceptions;

• admissions;

• tendency and coincidence evidence;

• the credibility rule and its exceptions;

• identification evidence;

• privilege;

• discretions to exclude evidence;

• judicial notice;

• directions to the jury; and

• matters outside the UEA.

The ALRC held consultations in all states, the ACT and the Northern Territory and received about 50 submissions. The consultations and submissions on IP 28 will form the foundation of a joint Discussion Paper to be released in mid-2005, which will contain proposals for reform (see box).

This article briefly outlines some of the emerging themes from the submissions and consultations before discussing one particular issue—the use of evidence that is relevant for both a non-hearsay and a hearsay purpose—in more depth.

Emerging themes

The change of evidence regimes occasioned by the introduction of the Evidence Act 1995 (Cth) and (NSW) resulted in judicial officers and legal practitioners in jurisdictions covered by the UEA having to master the UEA provisions and, in some areas, adapt to significant modifications of common law evidentiary principles. After a period of adjustment, it is clear that the UEA has ‘bedded in’, and the overwhelming view is that the UEA regime is working well.

Further, the decade of operation of the UEA in NSW, the ACT and in the federal courts has reduced the obstacles to introduction facing those jurisdictions considering adopting the UEA. The ALRC’s consultations in Tasmania indicated clearly that judicial interpretation of UEA provisions, coupled with the publication of a number of excellent evidence texts and annotations of the UEA, facilitated the implementation of the UEA in that state.

Some specific themes relating to the operation of the legislation have been identified. These include:

• Judicial officers are using the discretionary provisions in ss 135-137 to exclude or limit the use of evidence in appropriate circumstances.

• There is widespread support for the application of the UEA privilege provisions in pre-trial contexts.

• If a recommendation is made to amend the Evidence Act 1995 (Cth) to include privilege in relation to professional confidential relationships, the preferred view appears to be that the privilege should be qualified rather than absolute.

• There are divergent views as to whether offence specific provisions, such as those dealing with cross- examination of a complainant in a sexual assault case, should be in separate federal, state and territory legislation, or in the UEA.

• There is a general view that s 60 (which provides that the hearsay rule does not apply to evidence of a previous representation admitted for a non-hearsay purpose), s 98 (dealing with the admissibility of coincidence evidence) and s 102 (the statement of the credibility rule) require amendment, however views differ as to the form that any amendment should take.

Evidence relevant to a non-hearsay purpose

At common law, even if hearsay evidence is admissible by virtue of its relevance for a non-hearsay purpose, the court is not permitted to use it for its hearsay purpose (that is, as proof of the existence of a fact asserted by it). By contrast, s 60 of the UEA provides that:

‘The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.’

This section applies where evidence is relevant for both a non-hearsay and a hearsay purpose. Where evidence of a previous representation is relevant and admitted for a non-hearsay purpose, it can also be used for a hearsay purpose, that is, to prove the truth of its contents.

In recommending the enactment of a similar provision, the ALRC cited two areas in which the operation of the provision could arise. These were in relation to: (a) prior consistent and inconsistent statements; and (b) the factual basis of an expert’s opinion. Apart from simplifying the law and avoiding the need to create complex exceptions, another rationale for this provision was to avoid the need to make ‘unrealistic distinctions’ between permissible uses of admitted evidence, and for judges to develop directions to juries on these distinctions.

Lee v The Queen: limiting the operation of s 60

In Lee v The Queen² (Lee) the High Court confirmed that s 60 was intended to work a considerable change to the common law by allowing what would otherwise be hearsay evidence to be admitted. For example, s 60 allows evidence of prior consistent or inconsistent statements admitted for credibility purposes to be used to prove facts intentionally asserted in the statements, unless such use is limited by s 136 (or the evidence is excluded by s 135 or s 137).

However, in Lee, the High Court identified an important limitation on the operation of s 60. At trial, the Crown led a prior inconsistent statement of a witness (Calin) in which he described the defendant (Lee) walking up the street near the scene of a robbery and making an admission about the robbery, stating

‘...leave me alone, cause I’m running because I fired two shots...I did a job and the other guy was with me bailed out’. The evidence of this out of court statement was given by the police officer who took the statement because, at trial, Calin said that he could not recall the conversation and had not read or understood the prior statement.

The High Court held that s 60 does not convert evidence of what was said out of court, into evidence of some fact that the person speaking out of court did not intend to assert. Section 60 operates only on representations that are excluded by s 59. Therefore, s 60 did not allow the witness’ previous statement to be used as evidence of an admission by the defendant, a fact that the witness never intended to assert. Commentators have found the precise scope of the decision difficult to determine. One formulation states:

‘The court held that s 60 does not permit evidence of a previous representation made by A, which reports something said to A by B, to be used as proof of the existence of any fact asserted by B to A. Section 60 operates only on A’s representation, and it is argued that A cannot have intended to assert the existence of the act asserted by B.’³

While not stated in the judgment, the decision in Lee is often interpreted as meaning, in effect, that s 60 cannot apply to second-hand or more remote hearsay evidence. That is, after Lee, it is difficult to envisage any circumstances in which a person could be taken to have intended to assert the truth of facts relevant to the non-hearsay purpose and related to them by another person.

The cases applying Lee have generally involved previous inconsistent or consistent statements admitted as relevant for credibility purposes. However, Lee also has implications for the admission of facts upon which expert opinions are based. For example, a medical history given to a doctor by a patient and used in the doctor’s expert report is admissible under s 60 as evidence of the truth of the facts; but a similar medical history given to the doctor by the patient’s guardian, or based on the reports of other medical experts, may not be admissible, as the evidence is second-hand hearsay.

The ALRC has received a wide range of views on the operation of s 60 in the light of Lee. Some have submitted that the UEA should be amended to overrule the decision in Lee on the basis that it is not consistent with the intention and scheme of the UEA. Among other things, it has been suggested that the decision in Lee runs counter to one of the major aims of the Act, which was to remove technicality and simplify the content and operation of rules of evidence.

By contrast, there was also support for repealing or narrowing the ambit of s 60 on the basis that its only real rationale is to remove the need to direct juries on permissible uses of admitted evidence and that, as such, s 60 serves no useful purpose and should be repealed. Concerns were also expressed that s 60 tends to expand unproductively the evidence in criminal trials—in particular, by allowing complainants and accused persons to introduce prior (and possibly self-serving) statements as evidence of the truth of their contents.

An important related issue concerns the extent to which the discretionary provisions of the UEA are capable of addressing concerns raised about the operation of s 60. Under ss 135–137 evidence may be excluded or its use limited by reference to the concept of ‘unfair prejudice’ to a party (or, in the case of s 137, to a defendant in criminal proceedings).

Judicial officers, legal practitioners and academics also provided a range of perspectives on the use of s 136. There were concerns about whether s 136 as presently drafted provides adequate grounds on which to exclude evidence admissible under s 60. Comments included that resolving problems created by the breadth of s 60 through the exercise s 136 is unnecessarily complicated, ‘inelegant’ and overly dependent on the judicial officer.

Reform of section 60

If the High Court’s decision in Lee v The Queen has created confusion and uncertainty about the operation of s 60, as many have suggested, an amendment to the UEA may be justified.

Briefly stated, the UEA could be amended to codify and clarify the effect of the High Court’s interpretation of s 60 in Lee; or conversely, to overrule that decision and confirm that s 60 is not subject to the limitations identified in Lee. Both options are complicated by the difficulty of determining the precise ratio of Lee.

The former option would involve limiting the operation of s 60 to first-hand hearsay. The simplest way to achieve this, without introducing any new complexity, may be to relocate s 60 to the first-hand hearsay exceptions found in Division 2 of Part 3.2. In addition, the operation of s 60 could be limited to situations in which the non-hearsay purpose is credibility-related.

The latter option would involve ensuring that s 60 does apply to second-hand and more remote hearsay. Such an amendment would need to be carefully drafted because the decision in Lee is not based solely on a reading of s 60. It also rests on the High Court’s interpretation of the relationship between s 60 and the hearsay rule in s 59 and, in particular, limiting the application of s 60 to the representations that are relevant for the non-hearsay purpose (credibility).

If s 60 is to apply to second-hand and more remote hearsay, more emphasis may need to be given to the use of the discretionary provisions to exclude or limit the use of evidence. For example, on one view, Lee can be seen as an extreme case, where a person faced being convicted on remote hearsay evidence where it was not possible to get to the truth of the relevant assertions. If s 60 had been held to have operated to allow the admission of the evidence, it may have been a case where s 136 should have been applied.

The forthcoming Discussion Paper will contain more detailed discussion of this and other related issues concerning the hearsay provisions of the UEA, together with proposals for reform.

* Les McCrimmon is the lead Commissioner on the Australian Law Reform Commission’s Evidence Act inquiry.

Bruce Alston is a Senior Legal Officer with the Australian Law Reform Commission, assigned to the Evidence Act inquiry.

Endnotes

1. With the enactment of the Evidence Act 2001 (Tas), Tasmania joined the UEA regime, and most recently Norfolk Island passed the Evidence Act 2004 (Norfolk Is).

2. Lee v The Queen [1998] HCA 60; (1998) 157 ALR 394.

3. P Bayne, Uniform Evidence Law: Text and Essential Cases (2003), [10.520].