EVIDENCE LAW IN
THENORTHERN TERRITORY
FROM 1 JANUARY 2013
PART C – SIGNIFICANT
DIFFERENCES IN EVIDENCE
LAW BEFORE AND AFTER
1 JANUARY 2013
Legal Policy
Department of Attorney-General and Justice
68 The Esplanade, DARWIN NT 0800
GPO Box 1722, DARWIN NT 0801
Telephone: (08) 8935 7667 Facsimile: (08) 8935 7662
www.justice.nt.gov.au
Part C – Significant Differences in Evidence Law before and after 1 January 2013
Contents
1.
Unfavourable Witnesses .......................................................................... 3
2.
Original Document Rule .......................................................................... 3
3.
Admissibility of Evidence ......................................................................... 3
4.
Competence and Compellability .............................................................. 4
5.
Hearsay Evidence ................................................................................... 4
6.
Distinction Between the Admissibility of Hearsay Evidence in Civil and
Criminal Proceedings .............................................................................. 5
7.
Hearsay Rule and Aboriginal and Torres Strait Islander Laws and
Customs .................................................................................................. 6
8.
Opinion Rule ............................................................................................ 6
9.
Expert Evidence ...................................................................................... 6
10. Ultimate Issue Rule and Common Knowledge Rules Abolished ............. 7
11. Self Incrimination ..................................................................................... 7
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Part C – Significant Differences in Evidence Law before and after 1 January 2013
1.
Unfavourable Witnesses
Section 38 of the Evidence (National Uniform Legislation) Act replaces the old
common law rule about ‘hostile witnesses’. It allows the person who called
the witness to cross examine that witness if the witness’s evidence is
‘unfavourable’ (for example, goes against the party’s case or fails to come up
to an earlier statement), the witness does not appear to be making a genuine
attempt to tell the truth, or the witness has, at any time, made a prior
inconsistent statement.
If unfavourable evidence emerges during normal cross-examination, then the
person who called the witness can cross-examine the witness during
re-examination.
2.
Original Document Rule
The common law original document rule is abolished under section 51 of the
Evidence (National Uniform Legislation) Act.
Under the common law, the contents of a document generally can only be
proved by tendering the original document. The purpose of this rule was to
reduce the chances of error or fraud about the contents of the document.
Part 2.2 now allows for proof of the contents of documents in a number of
specified ways provided for in section 48 of the Evidence (National Uniform
Legislation) Act.
3.
Admissibility of Evidence
As a result of the inclusion of the words, “except as otherwise provided by this
Act” in section 56(1), all issues of admissibility are governed by the Evidence
(National Uniform Legislation) Act. Any common law rules relating to the
admissibility of evidence, even if consistent with the statutory provisions, will
have no application.
The common law distinguished between evidence that was logically relevant
and evidence that was legally relevant. Only evidence that was legally
relevant was admissible. That distinction is not incorporated into the definition
of relevance in section 55 of the Evidence (National Uniform Legislation) Act.
Section 56(1) of the Evidence (National Uniform Legislation) Act provides that
all relevant evidence is admissible. To be relevant, evidence must “rationally
effect (whether directly or indirectly) the assessment of the probability of the
existence of a fact in issue”.
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Part C – Significant Differences in Evidence Law before and after 1 January 2013
The exceptions to the general rule that all relevant evidence is admissible are
rationalised and consolidated in Chapter 3 of the Evidence (National Uniform
Legislation) Act. Chapter 3 includes a flowchart which sets out the process
for deciding whether relevant evidence is to be admitted, including
circumstantial, credibility, opinion, tendency and coincidence evidence.
4.
Competence and Compellability
As a result of the inclusion of the words, “except as otherwise provided by this
Act” in section 12(1), all issues of competence and compellability are
governed by the Evidence (National Uniform Legislation) Act. Any common
law rules relating to the competence and compellability, even if consistent with
the statutory provisions, will have no application under the Evidence (National
Uniform Legislation) Act.
The common law test of competence of understanding the difference between
truth and lies is replaced in section 13(1) of the Evidence (National Uniform
Legislation) Act with a focuses instead on the ability of the witness to
comprehend and communicate.
5.
Hearsay Evidence
The old hearsay rule excluded evidence of a statement of a person made to a
witness in order to prove that the statement was true. The test at common
law includes both intended and unintended assertions. Under section 59(1) of
the Evidence (National Uniform Legislation) Act, evidence of a previous
representation made by a person is not admissible to prove the existence of a
fact that it can be reasonably supposed that the person intended to assert by
the representation.
The Evidence (National Uniform Legislation) Act admits hearsay in certain
circumstances where it is likely to be reliable. If a party is seeking to have
hearsay evidence adduced, they may be required to provide notice under
section 67(3) of the Evidence (National Uniform Legislation) Act.
The underlying policy of the Evidence (National Uniform Legislation) Act in
relation to hearsay is to allow in more reliable hearsay evidence. Sections 60
to 74 of the Evidence (National Uniform Legislation) Act provide for the
exceptions against hearsay evidence.
The court will still have a general discretion under the Evidence (National
Uniform Legislation) Act to exclude any hearsay evidence under section 90 or
limit its use under section 136.
Section 60 of the Evidence (National Uniform Legislation) Act provides that, if
evidence has been admitted for non-hearsay purpose, then the hearsay rules
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Part C – Significant Differences in Evidence Law before and after 1 January 2013
do not apply to that evidence and it may also be admitted as evidence of the
truth of the contents of the previous representation. This applies whether the
previous representation is first-hand or more remote hearsay. Section 60
does not apply in relation to criminal proceedings.
Special rules apply in relation to hearsay evidence in criminal matters where
the maker of the statement is unable to give evidence about an asserted fact.
Under section 65 of the Evidence (National Uniform Legislation) Act, hearsay
evidence will be admissible in such circumstances if the hearsay
representation was made:
 by a person under a duty to make a representation;
 when or shortly after the asserted fact occurred, and under circumstances
that make it unlikely that the representation is a fabrication;
 in circumstances making it highly probable that the representation is
reliable; or
 against the interests of the person making the representation.
The hearsay must also have been given by a person who “saw, heard or
otherwise perceived the representation”. This is distinct from more remote
hearsay (note however the impact for civil proceedings of section 60 where
the evidence of a previous representation that has been admitted because it
is relevant for a purpose other than proof of an asserted fact).
The admission of evidence that would otherwise be hearsay evidence is
subject to the courts general discretion contained in section 136 of the
Evidence (National Uniform Legislation) Act to limit evidence that may be
unfairly prejudicial to a party or be misleading or confusing.
Section 137 requires a court in criminal proceedings not to admit prosecution
evidence if its probative value is outweighed by the danger of unfair prejudice.
In a jury trial, section 165(2) stipulates that the judge, if requested, must warn
the jury that the hearsay evidence may be unreliable, and say why it may be
unreliable.
6.
Distinction Between the Admissibility of Hearsay Evidence in Civil
and Criminal Proceedings
The Evidence (National Uniform Legislation) Act makes a distinction between
the admissibility of hearsay evidence in civil and criminal proceedings in
specified circumstances. The exception contained in section 60 (discussed
above) does not apply to criminal proceedings.
If the maker of a
representation is not available to give evidence in relation to criminal
proceedings, section 65 provides for the criteria that must be met if that
representation, which would otherwise amount to hearsay evidence, is to be
admitted into evidence.
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Part C – Significant Differences in Evidence Law before and after 1 January 2013
Section 66 provides that for criminal proceedings and the maker of a
representation is available to give evidence the hearsay rule does not apply to
evidence of the representation by that person, or someone else who saw or
heard the representation being made, provided the representation was “fresh
in the memory” of the person who made the representation. Section 26E of
the Evidence Act will be continue to apply in relation to offences involving a
sexual offence or serious violence offence in relation to statements made by a
child to others.
The hearsay rule does not apply in relation to interlocutory proceedings where
evidence is also adduced of the source of the hearsay, see section 75 of the
Evidence (National Uniform Legislation) Act.
7.
Hearsay Rule and Aboriginal and Torres Strait Islander Laws and
Customs
The existence or non-existence, or the content, of traditional laws and
customs of an Aboriginal or Torres Strait Islander group are not subject to the
rule against hearsay under section 72 of the Evidence (National Uniform
Legislation) Act.
8.
Opinion Rule
The general common law prohibition against opinion evidence remains in
section 76 of the Evidence (National Uniform Legislation) Act. In a departure
from the common law, if evidence of an opinion is admitted for a purpose
other than to prove the existence of a fact about which the opinion was
expressed, then it may also be used as proof of the fact about which the
opinion was expressed. Various other exceptions to the general rule are
contained in Part 3.3.
9.
Expert Evidence
There is a change in the way expert evidence dealing with children will be
viewed. Whereas at common law expert evidence relating to knowledge of
child development and child behaviour was sometimes excluded as not being
a recognised area of expertise, the Evidence (National Uniform Legislation)
Act emphasises the evidence of specialised knowledge in relation to the
development and behaviour of children under section 79(2).
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Part C – Significant Differences in Evidence Law before and after 1 January 2013
10. Ultimate Issue Rule and Common Knowledge Rules Abolished
The ‘ultimate issue rule’ prevented a witness from expressing an opinion on
an issue to be decided by the court. The ‘common knowledge rule’ excludes
expert opinion evidence on matters of common knowledge.
These rules are now abolished under the Evidence (National Uniform
Legislation) Act.
11. Self Incrimination
The Evidence (National Uniform Legislation) Act takes a different approach to
the common law regarding the privilege against self-incrimination.
The common law does not require a witness to answer a question where the
answer may tend to incriminate that witness in an offence.
The
Evidence (National Uniform Legislation) Act on the other hand, provides that a
court may require the witness to answer, if the interests of justice require it.
Section 128 provides that, before giving the required evidence, the witness is
issued with a certificate preventing the use of that evidence, or evidence
derived from that evidence, from being used in subsequent proceedings
against that witness. The court can then receive the relevant evidence in the
matter at hand and the witness is protected from the adverse consequences
of giving that evidence.
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