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Chapter 6
Proof
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Introduction
6.1
Parts 3.5 and 4 of the Evidence Act 1995 (Cth) and its state equivalents
(uniform evidence legislation) deal with miscellaneous aspects relating to proof.
Proof broadly refers to the establishment of facts or statements as true, generally
through the use of evidence. This chapter examines a number of provisions in
the uniform evidence legislation that are designed to set out the standard to
which matters are to be established in legal proceedings (the standard of proof),
as well as to regulate and facilitate proof of certain facts.
6.2
It is noteworthy that the uniform evidence legislation does not deal with
burdens of proof or the distinction between evidential and legal burdens.
The legal burden of proof refers to the onus that generally lies with the moving
party (the prosecution in a criminal matter or the plaintiff in a civil matter)
to establish their case,1 or ‘prov[e] the existence of the matter’.2 The evidential
burden of proof, however, relates to the obligation a party carries, in certain
circumstances, to introduce or point to ‘evidence that suggests a reasonable
possibility that the matter exists or does not exist’, in order to enliven a particular
issue in its case.3 The two concepts are inherently connected. For instance,
where a criminal defendant seeks to assert that they acted in self-defence, they
will bear the evidential burden of proof; that is, the onus will be on them to
point to evidence that warrants considering self-defence as a live issue in the
trial. Once that burden is discharged, however, the legal burden remains on
the prosecution to disprove self-defence beyond reasonable doubt.4 Although
the principle that the prosecution bears the legal burden in a criminal trial
derives from the presumption of innocence and has been said to be ‘a cardinal
principle of our system of justice’,5 a number of statutes provide for the reversal
of that burden in relation to certain terrorism or drug offences.6 These matters
were generally viewed by the Australian Law Reform Commission (ALRC) as
1.
2.
3.
4.
5.
6.
See, eg, Braysich v The Queen (2011) 243 CLR 434 at [33] (French CJ, Crennan and Kiefel JJ).
Criminal Code 1995 (Cth) sch 1, s 13.1(3).
Criminal Code 1995 (Cth) sch 1, s 13.3(6); Braysich (above, n 1) at [33] (French CJ, Crennan and
Kiefel JJ).
See, eg, Zecevic v DPP (1987) 162 CLR 645.
Sorby v Commonwealth (1983) 152 CLR 281 at 294 (Gibbs CJ).
See, eg, Criminal Code 1995 (Cth) s 102.6; Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 5.
159
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Australian Uniform Evidence Law: Principles and Context
best regulated by substantive law rather than by evidence law.7 The result is that
the uniform evidence legislation does not address them.
6.3
That being so, there are specific provisions in the uniform evidence legislation
that impliedly allocate the burden of proof to a party in relation to particular
items of evidence. For instance, s 84 provides that evidence of an admission
is not admissible ‘unless the court is satisfied that [the admission was] not
influenced’ by violence or oppression. It therefore falls to the party seeking
to rely on the admission to prove that it was not obtained through such
means. This party carries the legal burden of proof in this respect. At the same
time, s 84(2) requires the party ‘against whom evidence of the admission is
adduced’ to raise the issue, thereby giving it the evidential burden. Beyond such
specific provisions, however, the uniform evidence legislation remains silent on
these matters.
6.4
The present chapter examines the following thematic aspects that are contained
in the uniform evidence legislation: standards of proof, the doctrine of judicial
notice, corroboration, evidence of judgments and convictions, and provisions
designed to facilitate the process of proof. These are addressed in turn.
Current Operation of the Uniform Evidence Legislation
Copyright © 2019. LexisNexis Butterworths. All rights reserved.
Standards of proof
6.5
In relation to any fact, an opinion that it ‘exists may be held according to
indefinite gradations of certainty’.8 In a legal proceeding, the party bearing the
burden of proof is required to satisfy the decision-maker that their case has been
proved to the required standard or degree of proof, that is, to a particular level
of certainty. The rationale for having standards of proof is one of fairness and
credibility of the judicial system, which reflects the broader emphasis placed on
reason in the ascertainment of facts.9 The ALRC has asserted that such a system
requires the articulation of a ‘rational and fair basis upon which decisions may
be made’.10 Accordingly, applicable standards of proof must import elements of
objectivity, but also of flexibility to respond to the particular circumstances of
the case.11
6.6
The common law approach has long been to distinguish between the standards
of proof applicable to civil and criminal proceedings respectively, the latter
being higher, reflecting an overarching concern to minimise the risk of
Australian Law Reform Commission (ALRC), Evidence (Interim Report 26, 1985) vol 1, at [33],
[36] and [44].
8. Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 (Dixon J).
9. James B Thayer, A Preliminary Treatise on Evidence at the Common Law, Little Brown & Co, Boston,
1898, pp 197–9.
10. ALRC, Evidence (above, n 7), at [994].
11. Above.
7.
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6.9
Proof
wrongful convictions. Part 4.1 of the uniform evidence legislation, which
governs standards of proof, has maintained this distinction.13 It has also clarified
that the civil standard applies to matters of evidence admissibility, including in
criminal proceedings.14
12
6.7
A civil proceeding is defined in the uniform evidence legislation dictionary as ‘a
proceeding other than a criminal proceeding’. A criminal proceeding, in turn,
is defined as ‘a prosecution for an offence’ against Australian law, which includes
bail, committal and sentencing proceedings.15 Prosecutions for tax offences
under the Taxation Administration Act 1953 (Cth) are expressly excluded from
the definition of a criminal proceeding,16 and proceedings for bankruptcy have
also been held to fall outside the scope of criminal proceedings.17 Contempt
proceedings, while ‘criminal in nature’, are considered civil proceedings to
which the rules of civil procedure apply.18
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Standard of proof in civil proceedings: section 140
6.8
Section 140(1) of the uniform evidence legislation provides that the standard
of proof to be discharged by the party bearing the burden of proof in a civil
matter is ‘that the case has been proved on the balance of probabilities’. This is
consistent with the standard applicable at common law. In the 1947 case Miller
v Minister of Pensions,19 Denning J explained that ‘if the evidence is such that
the tribunal can say: “We think it more probable than not”, the burden is
discharged, but, if the probabilities are equal, it is not.’20
6.9
That being said, the process of determining whether the standard of proof
is met is not merely a mathematical exercise or a matter of engaging in the
relative comparison of the probability of the parties’ cases. In some cases, while
one party’s case may be more probable than the other party’s case, it may still
be that neither is sufficiently persuasive. In such a case, ‘the judge is not bound
always to make a finding one way or the other … He has open to him the third
alternative of saying that the party on whom the burden of proof lies … has
failed to discharge that burden.’21
12.
13.
14.
15.
16.
17.
18.
Above.
Evidence Act 1995 (Cth) and its state equivalents (uniform evidence legislation), ss 140–141.
Uniform evidence legislation, s 142.
Uniform evidence legislation, Dictionary Pt 1.
Uniform evidence legislation, Dictionary Pt 1.
Fitz-Gibbon v Wily (1998) 87 FCR 104 at 110.
Construction, Forestry, Mining and Energy Union v Boral Resources (2015) 256 CLR 375 at [81];
Witham v Holloway (1995) 183 CLR 525 at 534.
19. [1947] 2 All ER 372.
20. Above, at 385; see, eg, under the uniform evidence legislation, Carney v Newton [2006] TASSC 4
at [61].
21. Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 955 (Lord Brandon of Oakbrook), as cited
with approval in Kuligowski v Metrobus (2004) 220 CLR 363 at 385.
161
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Australian Uniform Evidence Law: Principles and Context
6.10
In the oft-cited common law case of Briginshaw v Briginshaw,22 Dixon J appeared
to endorse a subjective approach to the assessment of the civil standard of proof,
which requires the finder of fact to ‘feel an actual persuasion’ or ‘belief ’ in the
finding’s reality. He held:23
The truth is that, when the law requires the proof of any fact, the tribunal must
feel an actual persuasion of its occurrence or existence before it can be found.
It cannot be found as a result of a mere mechanical comparison of probabilities
independently of any belief in its reality ...
6.11
This view was challenged by the ALRC, which adopted a more objective
approach to the standard of proof, expressly rejecting the idea that ‘belief ’ in
or ‘actual persuasion’ by the moving party’s case is required.24 This is reflected
in the language used in s 140(1) of the uniform evidence legislation, which
requires the court to ‘find’ (rather than ‘believe’) the case proved to the defined
standard.25 Reliance on the word ‘satisfied’ in the provision was interpreted as
endorsing the ‘actual satisfaction’ test, rather than requiring a subjective ‘belief ’,
although the distinction is perhaps a little obscure.26
6.12
Nevertheless, appellate courts have continued to endorse the view that ‘actual
persuasion’ is required under the uniform evidence legislation. In NOM v Director
of Public Prosecutions,27 for instance, the Victorian Court of Appeal concluded:28
[T]he common law has over time elucidated the concept of satisfaction on the
balance of probabilities to mean a state of actual persuasion.There is nothing in
the language of s 140 to suggest that satisfaction on the balance of probabilities
should not be understood as it has been by the strong preponderance of
authority at common law.
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6.13
At about the same time, the High Court adopted a strictly probabilistic
approach to proof in Strong v Woolworths Ltd.29 The appellant in the case claimed
that she was seriously injured as a result of a fall sustained on the sidewalk
sales area outside a Big W store. The fall was occasioned when the appellant’s
crutch slipped on a greasy chip left on the path. A central issue in the case was
the extent of the probability that the chip had been deposited at a particular
time on that day, such that reasonable care and a process of regular inspection
would have enabled the hazard to be identified and corrected. The majority
of the High Court rejected the finding of the New South Wales Court of
Briginshaw (above, n 8).
Above, at 361.
ALRC, Evidence (above, n 7), at [995].
Above, at [998].
Morley v Australian Securities and Investments Commission (2010) 274 ALR 205 at 343 (Spigelman CJ,
Beazley and Giles JJA).
27. (2012) 38 VR 618.
28. Above, at [112] (Redlich and Harper JJA and Curtain AJA); see also Brown v New South Wales Trustee
and Guardian [2012] NSWCCA 431 at [52] (Campbell JA).
29. (2012) 246 CLR 182; 295 ALR 420.
22.
23.
24.
25.
26.
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6.15
Proof
Appeal that the chip was more likely to have been deposited at lunch time
than earlier in the day. Instead, it adopted a strictly probabilistic approach to
the issue, seemingly dissociated from notions of actual persuasion, finding
that ‘probabilities favoured the conclusion that the chip was deposited in the
longer period between 8 am and 12.10 pm and not the shorter period between
12.10 pm and the time of the fall.’30 Despite this particular case seemingly
favouring a probabilistic approach, the High Court is yet to explicitly and
finally resolve the issue.
6.14
Section 140(2) of the uniform evidence legislation further lists a number of
factors which the court is to take into account to determine whether the
standard of proof has been met. These factors are not exhaustive31 but include:
the nature of the cause of action or defence; the nature of the subject-matter
of the proceedings; and the gravity of the matters alleged.32 This provision is
drawn from Dixon J’s judgment in Briginshaw, in which he stated:33
[R]easonable satisfaction is not a state of mind that is attained or established
independently of the nature and consequence of the fact or facts to be proved.
The seriousness of an allegation made, the inherent unlikelihood of an
occurrence of a given description, or the gravity of the consequences flowing
from a particular finding are considerations which must affect the answer to
the question whether the issue has been proved to the reasonable satisfaction
of the tribunal.
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6.15
The High Court has since explained that while the standard of proof itself
remains unchanged, what is required for the court to find that the standard is
met in a civil proceeding will vary depending on the nature and gravity of the
allegations to be proved. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,34
the majority of the High Court held that courts should be particularly cautious
in civil cases involving allegations of criminal conduct of some kind:35
The ordinary standard of proof required of a party who bears the onus in civil
litigation in this country is proof on the balance of probabilities. This remains
so even where the matter to be proved involves criminal conduct or fraud.
On the other hand, the strength of the evidence necessary to establish a fact or
facts on the balance of probabilities may vary according to the nature of what
it is sought to prove. Thus, authoritative statements have often been made to
the effect that clear or cogent or strict proof is necessary ‘where so serious a
matter as fraud is to be found’. Statements to that effect should not, however,
be understood as directed to the standard of proof. Rather, they should be
understood as merely reflecting a conventional perception that members of
30.
31.
32.
33.
34.
35.
Above, at ALR 431 (French CJ, Gummow, Crennan and Bell JJ).
Morley (above, n 26) at 340 (Spigelman CJ, Beazley and Giles JJA).
Uniform evidence legislation, s 140(2).
Briginshaw (above, n 8) at 362.
(1992) 110 ALR 449.
Above, at [2] (Mason CJ, Brennan, Deane and Gaudron JJ).
163
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Australian Uniform Evidence Law: Principles and Context
our society do not ordinarily engage in fraudulent or criminal conduct and
a judicial approach that a court should not lightly make a finding that, on
the balance of probabilities, a party to civil litigation has been guilty of such
conduct.
This statement has since been endorsed as the correct interpretation of s 140(2)
of the uniform evidence legislation.36
6.16
A consideration of the factors in s 140(2) requires an examination of the gravity
of the consequences arising from a finding that the moving party’s case has
been proved and the orders that may flow from such a finding.37 Ostensibly, the
graver the consequences of a finding, the more cogent the evidence should be
for that finding to be made to the standard of proof.
6.17
Courts have applied the ‘Briginshaw principles’ reflected in s 140(2) of the
uniform evidence legislation to a broad range of matters. In proceedings seeking
to probate informal wills, for instance, courts have held that while the standard
of proof remains on the balance of probabilities, they are to ‘evaluate the
evidence with great care’.38 Similar instructions were given by the Full Court
of the Family Court in relation to family proceedings involving allegations of
child sexual abuse.39 In such cases,40
where the issue is a child’s contact or residence with a significant person in
his or her life, the grave consequences of a finding of sexual abuse cannot be
overstated. Accordingly, before trial judges find themselves impelled to make a
positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the
standard of proof they are required to apply must be towards the strictest end
of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act …
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6.18
Equally, in circumstantial cases, that is, in the absence of direct proof of the
allegation, evidence from which a ‘reasonable and definite inference’ may be
drawn is required to satisfy the civil standard of proof.41 The same principles
have also found their place in litigation concerning the imposition of control
orders, which restrict the liberties of people found to present a particular risk
of committing a terrorist act.42 The High Court has identified the difficulty
associated with predicting future behaviour and held that proof of the risk
36. Morley (above, n 26) at 340 (Spigelman CJ, Beazley and Giles JJA); see also Qantas Airways Ltd v Gama
(2008) 247 ALR 273.
37. Morley (above, n 26) at 341 (Spigelman CJ, Beazley and Giles JJA).
38. Re Hobbs [2017] VSC 424 at [72] (Garde J); see also Re Tang (aka Zheng) (2017) 52 VR 786 at [83]
(Kyrou and Mcleish JJA).
39. Re W (Sex Abuse; Standard of Proof) [2004] FamCA 768 at [15].
40. WK v SR (1997) 22 Fam LR 592 at [47].
41. Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 (Dixon, Williams, Webb, Fullagar and Kitto JJ);
Westbus Pty Ltd (admin appt) v Ishak [2006] NSWCA 198, [20].
42. Criminal Code 1995 (Cth) Div 104.
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6.21
Proof
was to be satisfied pursuant to s 140(2) of the uniform evidence legislation by
reference to the Briginshaw principles.43
Admissibility of preliminary facts: section 142
6.19
Section 142 of the uniform evidence legislation also provides that preliminary
facts necessary to determine whether evidence is admissible must be ‘proved
on the balance of probabilities’. In other words, the civil standard applies to
facts that bear on the admissibility of evidence, including evidence sought to
be adduced by the prosecution in a criminal matter. This is consistent with
previous common law and with the recommendation of the ALRC.44
6.20
In a manner that is reminiscent of the Briginshaw principles, s 142(2) further
prompts the court to consider ‘the importance of the evidence’ and ‘the gravity
of the matters alleged’ in relation to the preliminary question of fact to be
determined. R v Nona45 is a helpful illustration of the practical operation of
s 142(2). In this case, the defendant was to be tried for a fourth time in relation
to sexual offences against his then partner’s daughters. The prosecution sought
to adduce the audio-recordings of the evidence of the former partner and her
two daughters as admissible hearsay evidence on the ground that they were
not available to give evidence. The Supreme Court of the Australian Capital
Territory ruled that the witnesses were in effect unavailable. All three witnesses
were having suicidal ideation and were found to be unable ‘to give evidence
without an unacceptable risk of serious mental harm’.46 Considering s 142(2),
the court held that the evidence of the two complainants was ‘centrally and
highly important in the proceedings and … should be admitted if the statute
permits’.47 In these circumstances, the court was satisfied on the balance of
probabilities that the audio-recordings were admissible hearsay evidence.
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Standard of proof in criminal proceedings: section 141
6.21
43.
44.
45.
46.
47.
48.
Section 141(1) of the uniform evidence legislation provides that in criminal
matters, ‘the court is not to find the case of the prosecution proved unless it
is satisfied that it has been proved beyond reasonable doubt’. This provision
maintains the standard applicable at common law.48 Although it can be inferred
from the language of s 141(1) that the onus of proof is on the prosecution, the
provision does not explicitly state so. Therefore, common law authorities that
an accused in a criminal matter is presumed innocent and that the burden of
Thomas v Mowbray (2007) 233 CLR 307 at [112] (Gummow and Crennan JJ).
ALRC, Evidence (above, n 7), at [1003]–[1006].
(2015) 254 A Crim R 301.
Above, at [174], [187] and [194].
Above, at [150].
ALRC, Evidence (above, n 7), at [1000].
165
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Australian Uniform Evidence Law: Principles and Context
proof rests on the prosecution continue to apply.49 As Lord Sankey famously
stated in Woolmington v Director of Public Prosecutions, ‘[t]hroughout the web of
the … criminal law one golden thread is always to be seen, that it is the duty of
the prosecution to prove the prisoner’s guilt’.50
6.22
There are a number of theories as to why the high standard of proof became
applicable in criminal proceedings. One contention is that it developed in
the 18th century, with a view to mitigating the harshness of the criminal justice
system in capital cases.51 Another suggestion is that it was adopted ‘to make the
delivery of a conviction easier for juries constituted of anxious Christians, living
in an age still haunted by fear of damnation for convicting an innocent man’.52
Yet another view is that the phrase ‘beyond reasonable doubt’ was coined to
clarify the then existing standards of ‘satisfied conscience’ and ‘moral certainty’
in light of a growing awareness that facts cannot be retrospectively proven with
absolute certainty.53
6.23
The standard of ‘beyond reasonable doubt’ has been interpreted so as not to
require satisfaction beyond any doubt, however slight or fanciful; instead, it
is for the jury to determine whether the doubt entertained is reasonable.54
In other words,55
the test remains one of reasonable doubt, not of any doubt at all; and … the
jury’s function includes determining what is reasonable doubt — or to put that
in more concrete fashion, whether the doubt which is left (if any) is reasonable
doubt or not.
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6.24
Importantly, the standard of proof does not involve a choice between the
competing case theories presented by the prosecution and the defence
respectively. The standard of ‘beyond reasonable doubt’ is tilted heavily in favour
of the defence.The result is that it is not necessary for the trier of fact to accept
the defence evidence in order to find the defendant not guilty. Equally, mere
preference for the prosecution evidence is not sufficient to find the defendant
guilty. This is particularly important in ‘true alternative cases’ where one or the
other version are the only possibilities, and proof of one is therefore disproof
of the other. It has been acknowledged that in such cases, there is a real danger
49. See Woolmington v DPP [1935] AC 462; He Kaw Teh v The Queen (1985) 157 CLR 523.
50. Woolmington (above, n 49) at 481–2.
51. R v Compton and Barratt [2013] SASCFC 134 at [5] (Kourakis CJ); see Justice May, ‘Some Rules
of Evidence: Reasonable Doubt in Civil and Criminal Cases’ (1876) 10 American Law Review 642
at 656–9.
52. R v Dookheea (2017) 347 ALR 529 at [30]–[31], also referrring to J Q Whitman, The Origins of
Reasonable Doubt:Theological Roots of the Criminal Trial,Yale University Press, 2008, p 5.
53. R v Dookheea (above, n 52) at [30], [34].
54. R v Dookheea (above, n 52) at [34].
55. R v Chatzidimitriou (2000) 1 VR 493 at [11] (Phillips JA) (emphasis in original).
166
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6.26
Proof
that the jury may reason in terms of probabilities, rather than in accordance
with the criminal standard of proof.56
6.25
The precise meaning of the phrase ‘beyond reasonable doubt’ remains
unarticulated in the uniform evidence legislation.This is an approach consistent
with the common law position. In Green v The Queen,57 the High Court held
that the trial judge erred in directing the jury as to the meaning of the phrase
‘beyond reasonable doubt’. It stated that it would not be wise for a judge to
attempt to explain and quantify a reasonable doubt in their directions to the
jury. Indeed, the preferred view has consistently been that the phrase requires
no legal elaboration, and that any such elaboration may in fact obscure its
meaning.58 At a more fundamental level, John Henry Wigmore questioned
whether such an articulation of human belief was even possible:
The truth is that no one has yet invented or discovered a mode of measurement
of the intensity of human belief. Hence there can be yet no successful method
of communicating intelligibly to a jury a sound method of self-analysis for
one’s belief. If this truth is appreciated, courts will cease to treat any particular
form of words as necessary or decisive in the law for that purpose; for the law
cannot expect to do what logic and psychology have not yet done.59
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6.26
Yet, questions by the jury regarding the meaning of the phrase are relatively
frequent and research suggests that its meaning is not well or consistently
understood by individual jurors.60 In response to these concerns, legislation
was adopted in Victoria permitting the trial judge to elaborate on the meaning
of ‘beyond reasonable doubt’ when prompted, directly or indirectly, by the
jury.61 Section 64 of the Jury Directions Act 2015 (Vic) allows the trial judge to
make reference to the presumption of innocence, the burden of proof and the
limits of certainty when reconstructing past events. The trial judge may also
indicate that it is not enough for the jury to be persuaded that ‘the accused is
probably guilty or very likely to be guilty’ and that a reasonable doubt is not an
‘imaginary or fanciful doubt’.The phrase ‘beyond reasonable doubt’ is therefore
contextualised by reference to what it is not, rather than what it actually is.
This differs from other jurisdictions such as England, where the jury is simply
instructed that ‘beyond reasonable doubt’ means ‘sure’.62
56. Velevski v The Queen (2002) 187 ALR 233 at [127]–[129] (Gaudron J).
57. (1971) 126 CLR 28.
58. Above, at 28, referring to Brown v The King (1913) 17 CLR 570 at 587. See also Thomas v The Queen
(1960) CLR 102 at 604–5; R v Dookheea (above, n 52) at [37].
59. J H Wigmore, Evidence, 3rd ed, Little Brown, 1940, p 325.
60. See, eg, R v Dookhea (above, n 52) at [27], referring to Legislative Assembly (Victoria), Parliamentary
Debates, Hansard, 13 December 2012, at p 5559; M Chesterman, J Chan & S Hampton, Managing
Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice
Foundation, February 2001), pp 138–9.
61. Jury Directions Act 2015 (Vic) s 63.
62. R v Hepworth and Fearnley [1955] 2 QB 600.
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6.27
The uniform evidence legislation is also silent as to what precisely must be
proved beyond reasonable doubt. This is of particular relevance to cases relying
on circumstantial, rather than direct, evidence. In such cases, the common law
position, unaltered by the uniform evidence legislation, is that the jury must
be satisfied that guilt is the only reasonable inference that may be drawn from
the circumstantial evidence.63 It therefore falls to the prosecution to exclude,
beyond reasonable doubt, any reasonable hypothesis consistent with innocence.
6.28
Whether or not certain items of evidence are so essential to the prosecution
case that they ought to be individually established beyond reasonable doubt
remains a matter of debate and has not been resolved by the uniform evidence
legislation. In Shepherd v The Queen, the majority of the High Court held that
‘indispensable links in a chain of reasoning towards an inference of guilt’ must
be proved beyond reasonable doubt and the jury must be directed to that
effect.64 This is known as the Shepherd direction. By contrast, the court held
that ‘strands in a cable’, or items of evidence that cumulatively combine to
establish guilt, need not be individually established beyond reasonable doubt.65
Prosecutions relying on circumstantial evidence have sometimes referred to
such evidence as a ‘jigsaw puzzle’66 or ‘a mosaic of sometimes apparently tiny
items of evidence that, when put together, make up a whole picture.’67
6.29
The Shepherd direction has been the subject of some criticism. In Davidson
v The Queen, Spigelman CJ expressed some doubt as to whether it was, in fact,
necessary. Indeed, if the jury views a particular fact as indispensable in their
chain of reasoning towards guilt, ‘then it is unlikely that a jury could come to
a conclusion that the offence was established beyond reasonable doubt unless
that fact were so established’, rendering a direction to that effect ‘redundant’.68
In Victoria, the common law arising out of the Shepherd decision was recently
abolished, with the Jury Directions Act 2015 (Vic) providing that juries are now
to be directed that the prosecution must prove each element of the offence
and the absence of any relevant defence beyond reasonable doubt, whether
the case is circumstantial or not.69 There is therefore a measure of uncertainty
and inconsistency in this respect across the jurisdictions applying the uniform
evidence legislation, and a uniform and clarified approach to these matters is
yet to be adopted.
63. Shepherd v The Queen (1990) 170 CLR 573; 97 ALR 161 at 163–4; R v Baden-Clay (2016) 258
CLR 308 at [46]–[50].
64. Shepherd (above) at ALR 165 (Dawson J, Mason CJ agreeing at 162, Toohey J agreeing at 170,
Gaudron J agreeing at 170).
65. Above.
66. R v Huisman [1999] VSCA 170 at [15].
67. Elomar v The Queen (2014) 316 ALR 206 at [240].
68. Davidson v The Queen (2009) 75 NSWLR 150 at [10] (Spigelman CJ); see, contra, R v Merrit [1999]
NSWCCA 29.
69. Jury Directions Act 2015 (Vic) ss 61–62.
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6.35
6.30
Finally, section 141(2) provides that in criminal matters, ‘the court is to find
the case of a defendant proved if it is satisfied that the case has been proved on
the balance of probabilities’. This provision applies most particularly to certain
positive defences, such as the defence of mental impairment (or the common
law defence of insanity), in relation to which the defence bears the burden of
proof. In such cases, the lower civil standard applies, which is consistent with
previous common law authority,70 and reflects the less onerous burden that is
placed on the defence in criminal trials.
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Judicial notice
6.31
A fundamental aspect of the conduct of legal proceedings is that parties
are required to prove the facts which they allege to be true with evidence.
Such evidence may be documentary, physical or in the form of witness
testimony. There are narrow exceptions to this general obligation, however.
6.32
First, parties to a proceeding may, and often do, agree to certain facts. In such
a case, evidence is not required to be adduced to establish these facts on the
basis that they are not in dispute, which saves time and resources.The process of
agreement on facts is regulated by s 191 of the uniform evidence legislation.71
6.33
The doctrine of judicial notice is a second exception to the obligation placed
on a party to adduce evidence to prove the facts it alleges. Part 4.2 of the
uniform evidence legislation provides that a court may take judicial notice of
certain matters without requiring them to be proved by evidence. In doing so,
the court essentially acts on its own knowledge rather than on the evidence
presented before it. The main rationales for allowing such a departure from
ordinary procedure is ‘to maintain consistent findings in court proceedings
in areas of common knowledge and experience, and in areas of science and
history which have been the subject of earlier community investigation and are
not reasonably open to dispute’, as well as to save associated expense and time.72
6.34
Matters that the court may take judicial notice of are canvassed in the uniform
evidence legislation, which reflects the common law position.These are matters
of law (s 143), matters of state (s 145) and matters of common knowledge
(s 144).There is High Court authority for the proposition that these provisions
have subsumed the common law and act as a code in respect to judicial notice.73
6.35
Under s 143 of the uniform evidence legislation, ‘[p]roof is not required about
the provisions and coming into operation’ of legislation (whether an Act,
regulation or other legislative instrument), and judges may inform themselves
70.
71.
72.
73.
Sodeman v The King (1936) 55 CLR 192.
See above, ch 2, ‘The Trial’, at 2.23.
ALRC, Review of the Uniform Evidence Act (Discussion Paper No 69, July 2005) at [15.3].
Gattellaro v Westpac Banking Corp (2004) 204 ALR 258 at [17] (Gleeson CJ, McHugh, Hayne and
Heydon JJ); Aytugrul v The Queen (2012) 247 CLR 170 at [21].
169
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about those matters as they see fit. This departs from the general position that
a court is not permitted to conduct its own investigations, the rationale being
that the court has expertise on these matters. The judge is therefore allowed,
and expected, to determine the content and operation of the law applicable
to the matter at hand, and no evidence is required to support that process.
Section 145 further extends the application of the doctrine of judicial notice
to matters of state, such as the status and recognition of an entity as a state in
international law, in relation to which reliance may be placed on a certificate
of the executive branch of government — a Crown certificate — rather than
formal evidence. The content and operation of foreign law, however, may not
be the subject of judicial notice.74 Indeed, the judicial expertise that underpins
the taking of judicial notice of domestic legislation does not extend to foreign
law. Accordingly, expert evidence will generally be required.
6.36
It should be noted that s 5 of the Evidence Act 1995 (Cth) provides that s 143
applies to proceedings in any Australian court.Whether s 5 could validly enforce
the operation of s 143 in state matters in jurisdictions that have not adopted the
uniform evidence legislation has given rise to some debate.75 The ALRC has
declared itself satisfied, however, that problems do not arise in practice and that
an amendment is therefore unnecessary.76
6.37
Under s 144 of the uniform evidence legislation, ‘knowledge that is not
reasonably open to question’ does not necessitate proof. This includes
commonly held knowledge, whether local or general, as well as knowledge
that may be verified through an authority or document that is itself beyond
question.77 Section 144(4) mandates that parties are given the opportunity to
make submissions on the issue ‘to ensure that a party is not unfairly prejudiced’.
There is authority for the proposition that this subsection acts as a residual
safeguard such that knowledge which may qualify as ‘not reasonably open
to question’ but would unfairly prejudice a party, is not taken into account.78
This, the ALRC noted, is unlikely to arise often in practice, given the nature of
the knowledge that tends to be the subject of judicial notice.79
6.38
What amounts to ‘knowledge that is not reasonably open to question’ is
determined on a case by case basis. For instance, general knowledge may include
matters such as the occurrence and general pattern of tides. Local knowledge
may involve the fact that at high tide, a particular landmark is no longer
accessible. Finally, the measure of the high tide at a particular point on a
74.
75.
76.
77.
78.
79.
Uniform evidence legislation, ss 174–176.
ALRC, Review of the Uniform Evidence Act (above, n 72), at [15.9]–[15.10].
ALRC, Uniform Evidence (Report No 102, December 2005) at [17.8].
Uniform evidence legislation, s 144(1)(a) and (b).
Prentice v Cummins (No 5) (2002) 124 FCR 67 at [85].
ALRC, Evidence (above, n 7) at [977].
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Proof
particular day may amount to knowledge that may be verified through the
provision of a document, such as a tide chart.
6.39
In this respect, the uniform evidence legislation has broadened and simplified
the common law. Indeed, at common law, judicial notice was confined to
matters widely known and accepted within the community generally.80
This meant that local knowledge or matters that were susceptible of verification,
but not necessarily known widely by the general community, fell outside the
ambit of the doctrine of judicial notice, sometimes leading the courts to feign
ignorance.81 For instance, the time of high tide at a particular location could
not then be the subject of judicial notice because it was not widely known by
ordinary people. The position has now changed under s 144, the language of
which expressly includes such situations.The key element is that the knowledge
cannot reasonably be disputed, whether it is held generally, locally or requires
external verification.
6.40
The scope of knowledge that may fall within this provision is potentially very
broad and may vary over time, as common knowledge becomes more developed
about certain matters. For instance, in Kent v Wotton & Byrne Pty Ltd,82 the
Supreme Court of Tasmania held that the fact that asbestos is dangerous was
now common knowledge and could be the subject of judicial notice.83 This may
not have been so some few decades ago.
6.41
Reliance on the doctrine of judicial notice in relation to published research,
particularly in the field of social sciences, has raised some concerns. In Australian
Communist Party v Commonwealth, Justice Callinan noted:84
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[R]arely is there any universal acceptance of what are true history, politics
and social ethics … [There] is a huge, indeed probably immeasurable, range of
differences as to what they legitimately are, and the ways in which they are to
be identified, understood and applied.
More recently, the Full Court of the Family Court cautioned that ‘there
would be few issues in respect of which reference to extrinsic materials would
not be “reasonably open to question”’.85 Equally, in Aytugrul v The Queen,86
psychological research about the effect of DNA statistics on mock jurors was
not found to satisfy the test set out in s 144. It should be emphasised, however,
that knowledge is by nature ever-evolving and that what may not be reasonably
unquestionable at one time may subsequently become so. The result is that
precedent may have a limited value in respect to judicial notice matters.
80.
81.
82.
83.
84.
85.
86.
ALRC, Evidence (above, n 7), at [478]–[480].
Above, at [480], referring to Allchurch v Healey [1927] SASR 370 at 372.
(2008) 15 Tas R 264.
Kent v Wotton & Byrne (above) at [12] (Blow J).
Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 196 (Callinan J).
McGregor v McGregor [2012] FamCAFC 69 at [68].
(2012) 247 CLR 170 at [21].
171
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Corroboration
6.42
Corroboration refers to the reliance on independent evidence that confirms the
truth of evidence adduced. For instance, in an assault case, evidence of injuries
sustained may amount to corroborative evidence, as would an eyewitness who
verified the victim’s version of the assault. The ‘corroboration rule’ is one of
the earliest rules of evidence and was applied to specific items of evidence.
In the mid-18th century, the rule required the judge to direct the jury to acquit
an accused against whom the sole uncorroborated evidence was that of an
accomplice.87 Gradually, the direction to acquit transformed into corroboration
warnings to the jury.
6.43
At common law, the evidence of certain categories of witnesses — in particular
accomplices, complainants in sexual offences cases, and children — required
corroboration or a warning to the jury that it was unsafe to act on their
uncorroborated evidence.88 The rationale for imposing such controls on these
witnesses’ evidence is that it was thought to be generally less reliable than other
forms of evidence, suffering ‘from some intrinsic lack of reliability going beyond
the mere credibility of a witness.’89 Accomplices, for instance, may have had an
interest in shifting the blame onto a co-accused.The complex nature of consent
in sexual offences cases and the ease with which unfounded allegations may be
brought forward were also said to warrant corroboration. Equally, depending
on their cognitive development, children were thought to be more likely to
give unreliable evidence.90
6.44
This view has since been challenged. In Jenkins v The Queen, the High Court
cautioned that ‘[r]elating unreliability to classes of persons, rather than to the
circumstances of cases, involved stereotyping of a kind which is now out of favour’.91
This echoed concerns voiced by the ALRC, that the corroboration rules were far
too rigid and that the categorisation of witnesses as broadly unreliable, as opposed
to the assessment of the reliability of their actual evidence, was inappropriate.
It recommended, therefore, that a more flexible approach be adopted.92
6.45
Section 164 of the uniform evidence legislation is entitled: ‘Corroboration
requirements abolished’. In light of the ALRC recommendations, it provides
that ‘[i]t is not necessary that evidence on which a party relies be corroborated’.
Equally, warnings to the jury are no longer necessary, albeit not formally
prohibited.93 A judge may still, therefore, depending on the circumstances of
87. J Langbein, ‘Shaping the Eighteenth Century Criminal Trial: The View from the Ryder Sources’
(1983) 50(1) University of Chicago Law Review 96–103.
88. ALRC, Evidence (above, n 7), at [1009].
89. Carr v the Queen (1988) 165 CLR 314 at 319; Jenkins v The Queen (2004) 211 ALR 116 at [25].
90. ALRC, Evidence (above, n 7), at [1010]–[1014].
91. Jenkins (above, n 89) at 121 (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).
92. ALRC, Evidence (above, n 7), at [1015]–[1020].
93. Uniform evidence legislation, s 164(3).
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the case, give a warning to the jury that it would be unsafe to act on a specific
item of evidence, in the absence of corroboration.
6.46
Victoria has gone further than its counterparts, by prohibiting altogether the
giving of corroboration warnings in criminal proceedings before a jury.94
This amendment took place in the context of the adoption of a broadly revised
framework for jury directions.95 The result is that reliance is now placed fully
on general warnings that may be given in relation to unreliable evidence under
s 165 of the uniform evidence legislation. These were examined in detail in
chapter 3.96 The operation of these general warnings means that the focus is
not on an assessment of the nature of the evidence, features that may render
it unreliable and the exercise of caution in assigning it appropriate weight.
That focus has shifted away from a requirement for corroboration.
6.47
An important exception to this general abandonment of corroboration
requirements warrants a mention. The ALRC recommended preserving
corroboration requirements in relation to one particular offence, namely
perjury. The policy consideration at the heart of this recommendation is that
‘[t]here is always a danger that the threat of a perjury prosecution will be used
in an attempt to deter a witness from giving evidence or that such a prosecution
might be brought out of spite’.97 Accordingly, s 164(2) maintains the requirement
of corroboration with respect to perjury offences. This consideration, however,
may apply to almost any type of allegation, including one of serious offending.
6.48
Finally, the abolition of corroboration requirements in s 164 does not override
specific statutory provisions to the contrary. The interaction between s 164 and
other statutory corroboration requirements was examined in a judicial review
in Director of Public Prosecutions v Gibson.98 The respondent was involved in a
minor car accident and exchanged details with the other driver involved, who
subsequently called the police because the respondent smelt of alcohol.About two
hours after the accident occurred, police attended the respondent’s home and
conducted a breath test that produced a reading of 0.182%. The magistrate
acquitted the respondent on the basis of her uncorroborated evidence that she
had consumed half a glass of wine prior to the accident, and four or five after
the accident.The issue before the Supreme Court of Victoria was whether s 164
of the uniform evidence legislation impliedly repealed s 48(1) of the Road Safety
Act 1986 (Vic), the latter provision requiring corroboration. Emerton J held that
there was no inconsistency between the two provisions, and that s 164, in effect,
94.
95.
96.
97.
98.
Evidence Act 2008 (Vic) s 164(4) and (6).
Jury Directions Act 2015 (Vic) ss 33, 34 and 51.
See above, ch 3, ‘Exclusions and Warnings’, at 3.53ff.
ALRC, Evidence (above, n 7), at [1021].
[2012] VSC 297.
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‘applies to common law requirements for corroboration, not to requirements
imposed by statute to deal with specific situations.’99
Evidence of judgments and convictions
6.49
Any material fact alleged must be proved by evidence to the required standard in
the proceeding. It is not, generally speaking, open to apply facts proven in another
proceeding in the proceeding in which such facts are now sought to be relied upon.
Part 3.5 of the uniform evidence legislation governs the admissibility of evidence
of prior judgments and convictions. Section 91 in that Part operates to preclude
reliance on evidence of a decision or judgment, or a finding of fact, ‘to prove
the existence of a fact that was in issue in that proceeding’.100 This rule mirrors
the common law and is grounded on considerations of fairness, which ‘require that
a party have an adequate opportunity to test and counter the evidence led.’101
6.50
Unlike some other exclusionary rules in the uniform evidence legislation,
such as the hearsay rule102 and the opinion rule,103 evidence of judgments and
convictions cannot be used to prove the existence of a fact in issue even if it
is admissible for a different, unrelated purpose.104 In Ainsworth v Burden, the
New South Wales Court of Appeal stated:105
Copyright © 2019. LexisNexis Butterworths. All rights reserved.
It is clear that s 91 does not prevent the tender of judgments which contain
findings as to the existence of facts relevant to the issues in the trial in which
they are tendered. It merely prevents the judgments from being tendered for the
purpose of proving the existence of those facts. If they are admissible for some
other purpose — as they are in the present case, in order to demonstrate that they
would have persuaded any honest-minded person that the defendant’s allegations
were false — they may not then be used to prove the existence of those facts, a
consequence which would otherwise have flowed from s 60 of the Evidence Act.
As Stephen Odgers notes, s 91 does not prevent evidence being given of
judgments for the purpose of establishing the terms of a judgment and its effect,
rather than establishing the truth of the facts found.106
6.51
The issue has arisen in proceedings brought against a vexatious litigant seeking
to restrain them from further litigation. Justice McDonald, in Attorney-General
(Vic) v Garrett,107 considered the application of s 91(1) of the Evidence Act 2008
99.
100.
101.
102.
103.
104.
105.
Above, at [30].
Uniform evidence legislation, s 91(1).
ALRC, Evidence (above, n 7), at [771].
Uniform evidence legislation, s 60; see below, ch 9, ‘Hearsay Evidence’.
Uniform evidence legislation, s 77; see below, ch 11, ‘Opinion Evidence’.
Uniform evidence legislation, s 91(2).
Ainsworth v Burden [2005] NSWCA 174 at [109] (Hunt AJA, Handley JA agreeing at [1], McColl JA
agreeing at [2]).
106. S Odgers, Uniform Evidence Law, 13th ed, Thomson Reuters, 2018, at [91.60].
107. [2017] 51 VR 777.
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Proof
(Vic). His Honour noted that the provision, which ‘codifies a long-standing
common law principle’,108 had been applied differently in different decisions in
the New South Wales courts109 concerning ‘the extent to which s 91 operates
as a fetter upon the admissibility of judgments and orders in support of an
application to declare an individual a vexatious litigant’.110 In determining the
matter, his Honour held:111
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A judge hearing a general litigation restraint order application must make an
independent determination of whether an individual has commenced and/or
conducted vexatious proceedings. In doing so, a judge is entitled to have regard
to court orders and reasons for judgment in proceedings which are relied upon
by the applicant for the order. Insofar as judgments and court orders record
findings as to the nature of proceedings (such as whether the proceedings
should be dismissed as an abuse of process), this is a finding of mixed fact and
law. Section 91 does not operate to preclude reasons for judgment and orders
in respect of such proceedings from being admitted into evidence in support of
an application for a general litigation restraint order.
6.52
Section 91 has also arisen in the context of the use to be made of a judgment in a
criminal proceeding.The facts in issue in a criminal proceeding are determined
by reference to the elements of the charge. Where those facts founding the
charge are subject to formal admission, as is the case where an accused pleads
guilty to the offence as charged, that admission may mean that a particular
matter is no longer a fact in issue. In R v Brooks,112 Justice Hamill considered
whether the fact of a formal admission by the accused meant that evidence
going to the fact which had been admitted could no longer be considered
relevant for the purposes of s 55 of the uniform evidence legislation because
the evidence no longer went to a fact in issue: ‘the effect of such admissions
may mean that a particular matter is no longer a “fact in issue”’.113
6.53
In a recent ruling, the Victorian Supreme Court had to consider this very
issue.114 It was argued by a plaintiff who was suing the Salesian Society for
historical sexual abuse, that two judgments concerning previous criminal
convictions against the abusing priest in relation to abuse against other boys
in the school attended by the plaintiff did not attract the exclusionary rule in
s 91 because those convictions followed pleas of guilty and therefore the facts
stated in the judgments setting out the abuse were not facts in issue in those
108. Above, at [23].
109. See A-G (NSW) v Chan [2011] NSWSC 1315; A-G (NSW) v Potier [2014] NSWSC 118; A-G
(NSW) v Martin [2015] NSWSC 1372; A-G (NSW) v Mohareb [2016] NSWSC 1823.
110. Garrett (above, n 107) at [14].
111. Above, at [22].
112. [2017] NSWSC 188.
113. R v Brooks (above) at [23].
114. Easton v The Salesian Society Inc; Stephensen v The Salesian Society Inc [2018] VSC 622.
175
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proceedings. Justice McDonald considered it unnecessary to determine this
issue, finding that the judgments were not excluded by the operation of s 91
and were admissible for the following reason:116
115
The plaintiffs seek to admit into evidence the admissions recorded in the
judgments of Hogan J and Gucciardo J in respect of the period 1973 to 1979,
not to establish facts upon which he was found criminally liable, but rather
to support an inference that the defendants were aware that he was sexually
abusing students prior to 1980. Paragraphs 1 to 13 of the sentencing judgment
of Gucciardo J and paragraph[s] 1 to 16 of the sentencing judgment of Hogan J
will be admitted into evidence.
6.54
Section 92 of the uniform evidence legislation creates exceptions for the
exclusionary rule in s 91 on two bases. First, evidence of the grant of probate,
letters of administration or a similar order of the court proving details around
the death of a person and execution of a testamentary document will not be
caught by the exclusionary rule in s 91.117 Second, in a civil proceeding, s 91(1)
will not prevent the admission or use of evidence that a party, or a person
through or under whom a party claims, has been convicted of an offence, so
long as that conviction is final.118 The ALRC stated in relation to the creation
of this provision:119
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The proposal is to make evidence of a conviction admissible against the person
convicted (and those claiming through him) in any civil proceedings where it
is relevant to the issue to be decided.
6.55
The rationale for such an exception is one of efficiency. The convicted
defendant had full opportunity to test the evidence in the previous criminal
proceedings, and allowing evidence of the conviction serves to save the time
and cost involved in essentially re-hearing the matter in the subsequent civil
proceeding. The ALRC also noted that in many cases, the availability of the
evidence of conviction ‘will properly discourage parties from fighting cases that
should not be fought and properly encourage settlement of disputes’.120
6.56
Finally, s 93 of the uniform evidence legislation provides that nothing in
Part 3.5 (in other words the exclusionary rule in s 91) affects the operation
of a law that relates to the admissibility or effect of evidence of a conviction
tendered in a proceeding (including a criminal proceeding) for defamation
(s 93(a)), a judgment in rem (s 93(b)), or the law relating to res judicata or issue
estoppel (s 93(c)).
115.
116.
117.
118.
Above, at [17].
Above, at [20].
Uniform evidence legislation, s 92(1).
Uniform evidence legislation, s 92(2). Section 92(3) provides that the hearsay rule and the opinion
rule do not apply to evidence of a kind referred to in this section.
119. ALRC, Evidence (above, n 7), at [773].
120. ALRC, Evidence (above, n 7), at [772].
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6.59
Proof
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Facilitation of proof
6.57
Parts 4.3 and 4.6 of the uniform evidence legislation contain a number of
miscellaneous provisions designed to facilitate the process of proof. These largely
concern the admissibility of evidence of a formal nature, such as public or
official documents.
6.58
Courts have always had to contend with matters of authentication.Traditionally,
the authenticity of an object or document was to be established with specific
evidence. In the majority of cases, this required an attesting witness to give
evidence that the object or the document was indeed authentic, a process that
is both strictly formal and burdensome. The uniform evidence legislation has
attempted to address this by relying on a series of rebuttable presumptions
regarding the authenticity of particular items of evidence.These include evidence
produced by processes, machines and other devices (ss 146–147), evidence of
certain acts of justices or lawyers (s 148), seals and signatures (ss 150–151),
gazettes (s 153), official records (s 155), Commonwealth documents (s 155A),
public documents (ss 156–158), official statistics (s 159) and communications
(ss 160–163). These documents are now presumed to be authentic, unless
evidence is adduced to rebut this presumption.
6.59
A ‘request’ procedure is provided for under ss 166–169 of the uniform evidence
legislation, allowing a party ‘to make a reasonable request to another party’
in relation to a number of matters, including the ‘authenticity, identity and
admissibility’ of a document or thing. This procedure serves as a safeguard by
ensuring proper disclosure of relevant material and the possibility of calling
evidence with a view to ascertaining authenticity, where there is a genuine dispute
about the representations made in the material.121 The applicant generally bears
the onus to show that the request is a reasonable one.122 In Lin v Tasmania,123
the Tasmanian Court of Criminal Appeal considered how the procedure may
operate in the context of criminal proceedings, in which the burden of proof
otherwise lies squarely with the prosecution. In this case, the prosecution
relied on incriminating business records to show that the accused, one of two
shareholders in a fishing business, had conspired to make false declarations as
to the quantity of lobsters caught. The identities of the makers of the records
were not known to the prosecution. The court held that whether the accused
was in a position to assist in identifying the makers of the records did not bear
upon the question of the reasonableness of the request. Indeed, the accused in
a criminal trial is ‘under no obligation to conduct inquiries of his own or assist
in the investigation.’124 How these considerations affect the reasonableness of
121.
122.
123.
124.
Deputy Cmr of Taxation v Trimcoll Pty Ltd [2005] NSWSC 1324 at [47] (Hall J).
Lin v Tasmania [2012] TASCCA 9 at [131].
Above.
Above, at [148].
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6.59
Australian Uniform Evidence Law: Principles and Context
the request is to be determined on a case by case basis, the court held, bearing
in mind the parties’ respective burdens in the proceedings.125
6.60
Finally, Pt 4.6 of the uniform evidence legislation encourages reliance
on affidavits or written statements to prove a range of formal matters.126
Notice must be given to the other party within ‘a reasonable time’: s 173.
The Commonwealth legislation further sets out the procedure for the swearing
of such documents.127
Copyright © 2019. LexisNexis Butterworths. All rights reserved.
Conclusion
6.61
Proof is at the heart of legal proceedings and the law of evidence broadly
aims to foster rational proof by allowing access to relevant evidence while
guarding ‘against erroneous persuasion.’128 In this respect, the law of evidence
has been alternatively described as seeking to control the quality of evidence
presented by adversarial parties,129 or to ensure that the jury is not misled into
irrationality.130
6.62
The uniform evidence legislation has enshrined a number of common law
principles designed to facilitate the administration of proof (such as judicial
notice) and modified others that were seen as unnecessarily cumbersome or
potentially unfair (such as corroboration requirements). Its framework has
for the most part tended toward a more liberal operation of proof, while
maintaining relevant safeguards.
6.63
Equally essential to any litigation are the questions of burdens and standards
of proof. Burdens of proof remain outside the ambit of the uniform evidence
legislation and are viewed as best addressed in the context of the substantive
operation of the law. By contrast, the uniform evidence legislation has statutorily
espoused, and at times clarified, the common law principles governing the
standards of proof that apply in civil and criminal proceedings. Despite this,
uncertainties remain with respect to the directions that are to be given to
juries in circumstantial cases. These standards, as rigorous as they are, continue
to reflect the enduringly uncertain nature of proof, a proposition advanced by
William Twining some 30 years ago, when he reflected that ‘[t]he establishment
of the truth of alleged facts in adjudication is typically a matter of probabilities,
falling short of absolute certainty’.131
125. Above, at [145].
126. These matters are set out in ss 170 and 182 of the uniform evidence legislation.
127. Evidence Act 1995 (Cth) s 186.
128. J H Wigmore, ‘The Problem of Proof ’ (1913) 8(2) Illinois Law Review 77–103 at 77.
129. M Damaška, Evidence Law Adrift,Yale University Press, 1997.
130. E J Imwinkelried, ‘The Worst Evidence Principle: The Best Hypothesis as to the Logical Structure of
Evidence Law’ (1992) 46(5) University of Miami Law Review 1069–99 at 1072.
131. W Twining, Rethinking Evidence: Exploratory Essays, Basil Blackwell, 1990, p 73.
178
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Chapter 7
Privilege
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Introduction
7.1
Subject to issues of the relevance and form of the evidence, a witness who is
otherwise competent and compellable is required to answer questions put to
them in the course of giving evidence. Such compulsion applies irrespective
of whether the questions are asked in examination in chief, cross-examination
or re-examination. It extends to a compulsion to produce documents or other
material in response to a subpoena.
7.2
Historically, there has been a tension between the need to admit evidence
because it is relevant — and because it would be unfair to exclude it — and the
need to exclude the same evidence because it would undermine and endanger
certain socially valuable relationships based on confidentiality and trust. In
R v Young1 Spigelman CJ said:
[75] The starting point is that the search for the truth requires all oral and
documentary information, which is directly or indirectly relevant or material,
to be available … ‘The paramount principle of public policy is that truth should
always be accessible to the established courts of the country’ …
[76] However, in recognition of the fact that the truth may sometimes cost
too much, the common law recognises a specific list of privileges. This list has
been modified by statute.
[77] … Each category reflects a different form of public policy and, in that
sense, represents a ‘public interest’. However, each is a distinct category with its
own disparate incidents.
7.3
The result has been that the law recognises certain evidence, said to be
‘privileged’, will not be revealed. Confidential information between certain
parties will be ‘privileged’ as long as certain tests are satisfied for specific limited
categories of privilege. These categories are privileged because they are seen
to be more important than disclosure of evidence. In most instances, there is a
balancing process between protecting certain relationships (on the one hand)
and disclosing relevant evidence (on the other hand).
7.4
Four matters should be noted at the outset:
•• First, privilege is a right which is to be asserted by the holder of the privilege,
rather than a rule of admissibility. This means it is not a procedural rule,
1.
(1999) 46 NSWLR 681 at [75]–[77], citing McGuinness v A-G (Vic) (1940) 63 CLR 73 at 87 (Rich J).
179
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