EVIDENCE LAW IN THE
NORTHERN TERRITORY FROM
1 JANUARY 2013
PART E – MERGED COPY OF
THE EVIDENCE (NATIONAL
UNIFORM LEGISLATION) ACT
AND THE EXPLANATORY
STATEMENT
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 E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Contents
GENERAL OUTLINE............................................................................................................. 9
NOTES ON CLAUSES .......................................................................................................... 9
Chapter 1
Preliminary matters .......................................................................................... 11
Introductory Note................................................................................................................. 11
Outline of this Act ................................................................................................................ 11
Related legislation ............................................................................................................... 11
Part 1.1 Formal matters.......................................................................... 11
Clause 1 Short title ..................................................................................... 11
Clause 2 Commencement .......................................................................... 12
Clause 2A Object of Act ............................................................................. 12
Clause 3 Definitions ................................................................................... 12
Clause 4 Courts and proceedings to which Act applies .............................. 13
Clause 5 Extended application of certain provisions .................................. 15
Clause 6 Territories .................................................................................... 15
Clause 7 Act binds Crown .......................................................................... 15
Clause 8 Operation of Acts ........................................................................ 15
Clause 8A Application of Criminal Code ..................................................... 16
Clause 9 Application of common law and equity ........................................ 16
Clause 10 Parliamentary privilege preserved ............................................. 17
Clause 11 General powers of a court ......................................................... 17
Chapter 2 Adducing evidence ..................................................................................17
Introductory note .......................................................................................................17
Outline of this Chapter ..............................................................................................17
Part 2.1 Witnesses ................................................................................. 18
Division 1 Competence and compellability of witnesses ........................... 18
Clause 12 Competence and compellability ................................................ 18
Clause 13 Competence – lack of capacity ................................................. 18
Clause 14 Compellability – reduced capacity ............................................. 21
Clause 15 Compellability – Sovereign and others ...................................... 22
Clause 16 Competence and compellability – judges and jurors ................. 22
Clause 17 Competence and compellability – defendants in criminal
proceedings .............................................................................. 23
Clause 18 Compellability of spouses and others in criminal proceedings
generally ................................................................................... 23
Clause 19 Compellability of spouses and others in certain criminal
proceedings .............................................................................. 25
Clause 20 Comment on failure to give evidence ........................................ 26
Division 2 Oaths ........................................................................................ 27
Clause 21 Evidence of witnesses to be on oath ......................................... 27
Clause 22 Interpreters to act on oath ......................................................... 28
Clause 23 Choice of oath or affirmation ..................................................... 28
Clause 24 Requirements for oaths ............................................................. 29
Clause 25 Rights to make unsworn statements unaffected ........................ 29
2
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Division 3 General rules about giving evidence ......................................... 29
Clause 26 Court's control over questioning of witness .............................. 29
Clause 27 Parties may question witnesses ................................................ 30
Clause 28 Order of examination in chief, cross-examination and
re-examination .......................................................................... 30
Clause 29 Manner and form of questioning witnesses and their responses
.................................................................................................. 31
Clause 30 Interpreter.................................................................................. 31
Clause 31 Deaf and mute witnesses .......................................................... 32
Clause 32 Attempts to revive memory in court ........................................... 32
Clause 33 Evidence given by police officers .............................................. 33
Clause 34 Attempts to revive memory out of court ..................................... 34
Clause 35 Effect of calling for production of documents ............................. 34
Clause 36 Person may be examined without subpoena or other process .. 35
Clause 37 Leading questions ..................................................................... 36
Clause 38 Unfavourable witnesses ............................................................ 37
Clause 39 Limits on re-examination ........................................................... 38
Clause 40 Witness called in error ............................................................... 39
Clause 41 Improper questions.................................................................... 39
Clause 42 Leading questions ..................................................................... 43
Clause 43 Prior inconsistent statements of witnesses ................................ 44
Clause 44 Previous representations of other persons ................................ 44
Clause 45 Production of documents........................................................... 45
Clause 46 Leave to recall witnesses .......................................................... 46
Part 2.2 Documents................................................................................ 47
Clause 47 Definitions ................................................................................. 47
Clause 48 Proof of contents of documents ................................................. 48
Clause 49 Documents in foreign countries ................................................. 50
Clause 50 Proof of voluminous or complex documents .............................. 50
Clause 51 Original document rule abolished .............................................. 51
Clause 52 Adducing of other evidence not affected ................................... 52
Clause 53 Views......................................................................................... 52
Clause 54 Views to be evidence ................................................................ 53
Chapter 3 Admissibility of evidence .........................................................................53
Introductory Note ......................................................................................................53
Outline of this Chapter ..............................................................................................53
Clause 55 Relevant evidence ..................................................................... 57
Clause 56 Relevant evidence to be admissible .......................................... 57
Clause 57 Provisional relevance ................................................................ 58
Clause 58 Inferences as to relevance ........................................................ 59
Clause 59 The hearsay rule – exclusion of hearsay evidence ................... 60
Clause 60 Exception – evidence relevant for a non-hearsay purpose........ 62
Clause 61 Exceptions to the hearsay rule dependant on competency ....... 64
Clause 62 Restriction to "first-hand" hearsay ............................................. 65
Clause 63 Exception – civil proceedings if maker not available ................. 66
Clause 64 Exception – civil proceedings if maker available ....................... 66
Clause 65 Exception – criminal proceedings if maker not available ........... 68
Clause 66 Exception – criminal proceedings if maker available ................. 72
3
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 66A Exception – contemporaneous statements about a person's
health etc. ................................................................................. 74
Clause 67 Notice to be given ..................................................................... 75
Clause 68 Objections to tender of hearsay evidence in civil proceedings if
maker available ......................................................................... 75
Clause 69 Exception – business records ................................................... 76
Clause 70 Exception – contents of tags, labels and writing ........................ 78
Clause 71 Exception – electronic communications .................................... 79
Clause 72 Exception – Aboriginal and Torres Strait Islander traditional laws
and customs ............................................................................. 80
Clause 73 Exception – reputation as to relationships and age ................... 81
Clause 74 Exception – reputation of public or general rights ..................... 82
Clause 75 Exception – interlocutory proceedings....................................... 82
Clause 76 The opinion rule ........................................................................ 83
Clause 77 Exception – evidence relevant otherwise than as opinion
evidence ................................................................................... 84
Clause 78 Exception – lay opinions............................................................ 85
Clause 78A Exception – Aboriginal and Torres Strait Islander traditional
laws and customs ..................................................................... 85
Clause 79 Exception – opinions based on specialised knowledge ............. 86
Clause 80 Ultimate issue and common knowledge rules abolished ........... 88
Clause 81 Hearsay and opinion rules – exception for admissions and
related representations ............................................................. 88
Clause 82 Exclusion of evidence of admissions that is not first-hand ........ 89
Clause 83 Exclusion of evidence of admissions as against third parties .... 90
Clause 84 Exclusion of admissions influenced by violence and certain other
conduct ..................................................................................... 91
Clause 85 Criminal proceedings – reliability of admissions by defendants 91
Clause 86 Exclusion of records of oral questioning .................................... 94
Clause 87 Admissions made with authority ................................................ 95
Clause 88 Proof of admissions ................................................................... 96
Clause 89 Evidence of silence ................................................................... 96
Clause 90 Discretion to exclude admissions.............................................. 97
Clause 91 Exclusion of evidence of judgments and convictions................. 98
Clause 92 Exceptions ................................................................................. 99
Clause 93 Savings ................................................................................... 100
Clause 94 Application............................................................................... 100
Clause 95 Use of evidence for other purposes......................................... 101
Clause 96 Failure to act ........................................................................... 101
Clause 97 The tendency rule ................................................................... 102
Clause 98 The coincidence rule ............................................................... 104
Clause 99 Requirements for notices ........................................................ 105
Clause 100 Court may dispense with notice requirements ....................... 105
Clause 101 Further restrictions on tendency evidence and coincidence
evidence adduced by prosecution .......................................... 106
Clause 101A Credibility evidence ............................................................. 108
Clause 102 The credibility rule ................................................................. 109
Clause 103 Exception – cross-examination as to credibility ..................... 110
Clause 104 Further protections – cross-examination as to credibility....... 111
4
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 105 Further protections – defendants making unsworn statements
................................................................................................ 112
Clause 106 Exception – rebutting denials by other evidence ................... 113
Clause 107 Exception – application of certain provisions to makers of
representations ....................................................................... 114
Clause 108 Exception – re-establishing credibility ................................... 114
Clause 108A Admissibility of evidence of credibility of person who has
made a previous representation ............................................. 115
Clause 108B Further protections – previous representations of an accused
who is not a witness ................................................................ 116
Clause 108C Exception – evidence of persons with specialised knowledge
................................................................................................ 118
Clause 109 Application ............................................................................. 120
Clause 110 Evidence about character of accused persons ...................... 120
Clause 111 Evidence about character of co-accused .............................. 121
Clause 112 Leave required to cross-examine about character of accused or
co-accused ............................................................................. 122
Clause 113 Application of Part ................................................................. 122
Clause 114 Exclusion of visual identification evidence ............................. 122
Clause 115 Exclusion of evidence of identification by pictures ................ 124
Clause 116 Directions to jury.................................................................... 127
Clause 117 Definitions ............................................................................. 128
Clause 118 Legal advice .......................................................................... 130
Clause 119 Litigation ................................................................................ 132
Clause 120 Unrepresented parties ........................................................... 132
Clause 121 Loss of client legal privilege – generally ................................ 133
Clause 122 Loss of client legal privilege – consent and related matters .. 134
Clause 123 Loss of client legal privilege – defendants ............................. 135
Clause 124 Loss of client legal privilege – joint clients ............................. 136
Clause 125 Loss of client legal privilege – misconduct ............................ 137
Clause 126 Loss of client legal privilege – related communications and
documents .............................................................................. 138
Clause 127 Religious confessions............................................................ 138
Clause 128 Privilege in respect of self-incrimination in other proceedings
................................................................................................ 140
Clause 128A
Privilege in respect of self-incrimination – exception for
certain orders etc. ................................................................... 143
Clause 129 Exclusion of evidence of reasons for judicial etc. decisions .. 146
Clause 130 Exclusion of evidence of matters of state .............................. 148
Clause 131 Exclusion of evidence of settlement negotiations .................. 150
Clause 131A Application of Division to preliminary proceedings of courts152
Clause 132 Court to inform of rights to make applications and objection . 154
Clause 133 Court may inspect etc. documents ........................................ 154
Clause 134 Inadmissibility of evidence that must not be adduced or given
................................................................................................ 154
Clause 135 General discretion to exclude evidence ................................. 155
Clause 136 General discretion to limit use of evidence ............................ 156
Clause 137 Exclusion of prejudicial evidence in criminal proceedings ..... 157
Clause 138 Exclusion of improperly or illegally obtained evidence .......... 158
5
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 139 Cautioning of persons ........................................................... 162
Clause 140 Civil proceedings – standard of proof .................................... 165
Clause 141 Criminal proceedings – standard of proof.............................. 166
Clause 142 Admissibility of evidence – standard of proof ........................ 166
Clause 143 Matters of law ........................................................................ 167
Clause 144 Matters of common knowledge ............................................. 168
Clause 145Certain Crown certificates ...................................................... 168
Clause 146 Evidence produced by processes, machines and other devices
................................................................................................ 169
Clause 147 Documents produced by processes, machines and other
devices in the course of business ........................................... 170
Clause 148 Evidence of certain acts of justices, Australian lawyers and
notaries public......................................................................... 171
Clause 149 Attestation of documents ....................................................... 171
Clause 150 Seals and signatures ............................................................. 171
Clause 151 Seals of bodies established under State law ......................... 173
Clause 152 Documents produced from proper custody ........................... 173
Clause 153 Gazettes and other official documents .................................. 174
Clause 154 Documents published by authority of Parliaments etc. .......... 175
Clause 155 Evidence of official records ................................................... 176
Clause 155A Evidence of Commonwealth documents ............................. 177
Clause 156 Public documents .................................................................. 177
Clause 157 Public documents relating to court processes ....................... 178
Clause 158 Evidence of certain public documents ................................... 179
Clause 159 Official statistics .................................................................... 180
Clause 160 Postal articles ........................................................................ 180
Clause 161 Electronic communications.................................................... 181
Clause 162 Lettergrams and telegrams ................................................... 182
Clause 163 Proof of letters having been sent by Commonwealth agencies
................................................................................................ 183
Clause 164 Corroboration requirements abolished .................................. 183
Clause 165 Unreliable evidence ............................................................... 184
Clause 165A Warnings in relation to children's evidence ......................... 186
Clause 165B Delay in prosecution ........................................................... 187
Clause 166 Definition of request .............................................................. 190
Clause 167 Requests may be made about certain matters ...................... 190
Clause 168 Time limits for making certain requests ................................. 191
Clause 169 Failure or refusal to comply with requests ............................. 192
Clause 170 Evidence relating to certain matters ...................................... 194
Clause 171 Persons who may give such evidence .................................. 195
Clause 172 Evidence based on knowledge, belief or information ............ 196
Clause 173 Notification of other parties .................................................... 196
Clause 174 Evidence of foreign law ......................................................... 196
Clause 175 Evidence of law reports of foreign countries.......................... 197
Clause 176 Questions of foreign law to be decided by judge ................... 197
Clause 177 Certificates of expert evidence .............................................. 198
Clause 178 Convictions, acquittals and other judicial proceedings .......... 199
Clause 179 Proof of identity of convicted persons – affidavits by members
of State or Territory police forces ............................................ 200
6
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 180 Proof of identity of convicted persons – affidavits by members
of Australian Federal Police .................................................... 201
Clause 181 Proof of service of statutory notifications, notices, orders and
directions ................................................................................ 201
Clause 182 Application of certain sections in relation to Commonwealth
records .................................................................................... 203
Clause 183 Inferences ............................................................................. 203
Clause 184 Accused may admit matters and give consents .................... 203
Clause 185 Full faith and credit to be given to documents properly
authenticated .......................................................................... 204
Clause 186 Swearing of affidavits ............................................................ 204
Clause 187 No privilege against self-incrimination for bodies corporate .. 205
Clause 188 Impounding documents ......................................................... 205
Clause 189 The voir dire .......................................................................... 205
Clause 190 Waiver of rules of evidence ................................................... 207
Clause 191 Agreements as to facts.......................................................... 208
Clause 192 Leave, permission or direction may be given on terms ......... 209
Clause 192A Advance rulings and findings .............................................. 210
Clause 193 Additional powers .................................................................. 211
Clause 194 Witnesses failing to attend proceedings ................................ 211
Clause 195 Prohibited question not to be published ................................ 213
Clause 196 Proceedings for offences....................................................... 214
Clause 197 Regulations ........................................................................... 214
Clause 198 Definitions ............................................................................. 215
Clause 199 Application of this Act on commencement day ...................... 215
Clause 200 Application of section 128A ................................................... 215
Clause 201 Application of Part 3.10 to disclosure requirements .............. 215
Clause 202 Identifications already carried out .......................................... 216
Clause 203 Documents and evidence produced before commencement day
by processes, machines and other devices ............................ 216
Clause 204 Documents attested and verified before commencement day
................................................................................................ 216
Clause 205 Matters of official record published before commencement day
................................................................................................ 216
Clause 206 Agreed facts .......................................................................... 217
Clause 207 Application of Act to improperly or illegally obtained evidence
................................................................................................ 217
Clause 208 Notification provisions ........................................................... 217
Clause 209 Notice of intention to adduce hearsay evidence .................... 218
Clause 210 Notice of intention to adduce evidence as to tendency or
coincidence ............................................................................. 218
Clause 211 Time limits for making requests ............................................. 219
Clause 212 Requests under section 173 .................................................. 219
Clause 213 Transitional regulations ......................................................... 219
Schedule
Oaths and affirmation ..................................................................................... 220
Dictionary .......................................................................................................................... 220
References to civil penalties ..................................................................... 230
Unavailability of persons .......................................................................... 230
Unavailability of documents and things .................................................... 231
7
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Representations in documents ................................................................. 232
Witnesses ................................................................................................. 233
References to documents ........................................................................ 233
8A
References to offices etc. .............................................................. 233
References to laws ................................................................................... 233
References to children and parents.......................................................... 234
References to de facto partners ............................................................... 234
Acknowledgement ............................................................................................................. 235
8
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
NORTHERN TERRITORY OF AUSTRALIA
____________________
Act No. [ ] of 2011
____________________
An Act about the law of evidence, and for related purposes
[Assented to 15 November 2011]
[Second reading 16 August 2011]
GENERAL OUTLINE
The Evidence (National Uniform Legislation) Act provides for a new statutory
law of evidence that will replace the current common law and statute law.
NOTES ON CLAUSES
The Uniform Evidence Act (UEA) is now law in the Commonwealth, the ACT,
NSW, Norfolk Island, Victoria and Tasmania.
At present NT Evidence law is common law modified by a number of discrete,
purpose driven statutes.1 There are also numerous other laws that modify in
various ways the application of the general laws, such as those applying to
the operation of administrative tribunals that disapply the formal rules of
evidence.
This Bill is the first of two Bills to introduce model uniform evidence law into
the Northern Territory. A further Bill will be introduced at a later date to repeal
relevant parts of the Evidence Act (NT) the subject matter of which is
addressed in this Bill, and to make other relevant amendments and
transitional arrangements across the Northern Territory statute book. These
will both commence at the same time.
Model uniform evidence law arose out of a comprehensive review of evidence
laws by the Australian Law Reform Commission (ALRC) in the 1980s. The
ALRC produced a model Bill (the Model Bill) to provide a modernised,
1 As well as the Evidence Act 193, there are the Evidence (Business Records) Interim Arrangements
Act, and the Sexual Offences (Evidence and Procedure) Act.
9
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
structured and reasoned approach to the laws of evidence. The purpose of
the Model Bill was to promote and maintain uniformity and harmonisation of
evidence laws across Australian jurisdictions. The Model Bill clarified
evidence laws by partially codifying complex common law rules and re-writing
statutory rules of evidence in a clear and concise manner.
The policy behind the UEA is that all relevant and reliable evidence that is of
an appropriate probative value should be admissible unless such evidence
would cause unfair prejudice to a party to a court proceeding.
The UEA is the product of a decade of work by the ALRC, with the aim of
creating greater clarity, certainty and accessibility in the law of evidence. It is
of course influenced by the common law but is not a restatement of the
common law, and it is to be interpreted by ‘the language of the statute’.
The UEA is not technically a code of the law of evidence. It does not affect the
operation of other legislation, or consistent common law and equitable rules of
evidence. Some topics, which are so linked to the substantive law that they
can only be considered in that context, are left out. For example it does not
deal with the legal and evidential burden of proof, the parole evidence rule,
issue estoppel, res judicata, notice of alibi provisions, vulnerable witnesses,
the standard of proof and allocation of the burden of proof, or presumptions.
Chapter 3 of the UEA, however, does cover the field of admissibility of
evidence, and abrogates the common law rules, by stating in s56(1) ‘Except
as otherwise provided in this Act, evidence that is relevant in a proceeding is
admissible in the proceeding.’
There are significant reforms introduced by the UEA in, for example, the area
of hearsay, discretionary exclusion and cross examining of a party’s own
witness. The ‘ultimate issue’ rule and ‘common knowledge’ rule regarding
opinion evidence have been abolished. It is now easier to admit computer
generated evidence. Various changes have been made in criminal
proceedings, in for example, the competence of family to give evidence, and
tendency (propensity) and coincidence (similar fact) evidence.
The UEA sets out the rules of evidence that apply to all proceedings with the
aim of ensuring a fair hearing for persons appearing before the courts. It is
based upon the proposition that the laws of evidence must serve the trial
system and is structured so that the provisions follow the order in which
issues ordinarily arise in trials. It seeks to maximise certainty for the parties
involved in litigation by providing clear rules to enable preparation for, and
conduct of, trials.
The UEA seeks to maximise the ability of parties to produce the most
probative evidence available, whilst retaining fairness, particularly for an
accused in a criminal trial. For this reason, where appropriate, the Bill
differentiates between civil and criminal trials.
10
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
The Legislative Assembly of the Northern Territory enacts as follows:
Chapter 1
Preliminary matters
Introductory Note
Outline of this Act
This Act sets out the rules of evidence for the Territory. Generally speaking,
the Act applies to proceedings in Territory courts and before other persons or
bodies required to apply the laws of evidence (see section 4).
Chapter 2 is about how evidence is adduced in proceedings.
Chapter 3 is about admissibility of evidence in proceedings.
Chapter 4 is about proof of matters in proceedings.
Chapter 5 deals with miscellaneous matters.
The Dictionary at the end of this Act defines terms and expressions used in
this Act.
Related legislation
This Act is in most respects uniform with the Evidence Act 1995 (Cth), the
Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic). These Acts are
drafted in identical terms except so far as differences are identified by
appropriate annotations to the texts, and except so far as minor drafting
variations are required to accord with the drafting style of each jurisdiction.
If one Act contains a provision that is not included in another Act, there is a
gap in the numbering of the other Act in order to maintain consistent
numbering for the other provisions.
Part 1.1
Formal matters
Clause 1 Short title
This Act may be cited as the Evidence (National Uniform Legislation) Act
2011.
Clause 1 Short title
The Bill when enacted will be called the Evidence (National Uniform Evidence
Legislation) Act 2011.
11
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 2 Commencement
(1)
This Part and the Dictionary at the end of this Act commence on the
day on which the Administrator's assent to this Act is declared.
(2)
The remaining provisions of this Act commence on the day fixed by
the Administrator by Gazette notice.
Clause 2
Commencement
This clause provides for the commencement of the Act. Clauses 1–3 and the
Dictionary are to commence on the day after the day on which the Act
receives the Administrator’s Assent. The other provisions are to commence
on the date fixed by the Administrator by Gazette notice.
Clause 2A Object of Act
The object of this Act is to make fresh provision for the law of evidence
that is uniform with the following laws of the Commonwealth, New South
Wales and Victoria:
(a)
the Evidence Act 1995 (Cth) (the Commonwealth Act);
(b)
the Evidence Act 1995 (NSW) (the NSW Act);
(c)
the Evidence Act 2008 (Vic) (the Victorian Act).
Clause 2A Object of Act
The purpose of the Act is to make the Northern Territory’s law of evidence
uniform with Commonwealth, ACT, New South Wales, Tasmanian, Norfolk
Island and Victorian evidence law.
Clause 3 Definitions
(1)
Expressions used in this Act (or in a particular provision of this Act)
that are defined in the Dictionary at the end of this Act have the
meanings given to them in the Dictionary.
(2)
Notes included in this Act are explanatory notes and do not form
part of this Act.
Notes for section 3
1 Some expressions used in this Act are defined in the
Interpretation Act and have the meanings given to them in that
Act.
2 The Commonwealth Act and NSW Act include an additional
subsection (3) regarding definitions which is unnecessary in the
12
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Territory because of section 18 of the Interpretation Act.
Clause 3
Definitions
The expressions used in the Dictionary at the end of the Act have the
meanings given to them in the Dictionary, and also provides that the notes
included in the Bill are explanatory and do not form part of the Act.
Part 1.2
Application of Act
Clause 4 Courts and proceedings to which Act applies
(1)
(2)
(3)
This Act applies to all proceedings in a Territory court, including
proceedings that:
(a)
relate to bail; or
(b)
are interlocutory proceedings or proceedings of a similar kind;
or
(c)
are heard in chambers; or
(d)
subject to subsection (2), relate to sentencing.
If such a proceeding relates to sentencing:
(a)
this Act applies only if the court directs that the law of
evidence applies in the proceeding; and
(b)
if the court specifies in the direction that the law of evidence
applies only in relation to specified matters – the direction has
effect accordingly.
The court must make a direction if:
(a)
a party to the proceeding applies for such a direction in
relation to the proof of a fact; and
(b)
in the court's opinion, the proceeding involves proof of that
fact, and that fact is or will be significant in determining a
sentence to be imposed in the proceeding.
(4)
The court must make a direction if the court considers it appropriate
to make such a direction in the interests of justice.
(5)
In this section, a proceeding that relates to sentencing includes a
proceeding for an order under Part 5 of the Sentencing Act or
Part 5, Division 9 of the Traffic Act.
13
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Notes for section 4
1
Section 4 of the Commonwealth Act differs from this section. It
applies that Act to proceedings in a federal court or an
Australian Capital Territory court. Some provisions of the
Commonwealth Act extend beyond proceedings in federal
courts and Australian Capital Territory courts (see sections 5,
185, 186 and 187 of the Commonwealth Act).
2
Territory court is defined in the Dictionary. The definition
includes persons or bodies required to apply the laws of
evidence.
3
The Commonwealth Act includes 2 additional subsections that
exclude the application of that Act to appeals from a court of a
State or Territory (including appeals from a court exercising
federal jurisdiction) and certain other courts.
4
Provisions in other Territory Acts which relieve courts from the
obligation to apply the rules of evidence in certain proceedings
are preserved by section 8 of this Act. These include, for
example:
• section 39 of the Coroners Act;
• section 93(2) of the Care and Protection of Children Act;
• section 257(2) of the Electoral Act;
• section 49(2) of the Ombudsman Act;
• section 25(2) of the Public Interest Disclosure Act.
5
Clause 4
Subsection (5) is not included in the Commonwealth Act or
NSW Act.
Courts and proceedings to which Act applies
The Bill applies to all proceedings in a Territory Court. These include
proceedings relating to bail, proceedings heard in chambers and interlocutory
proceedings of a similar kind. Whilst sentencing proceedings are also
included, the Bill applies in such proceedings only if the court directs the law
of evidence to apply and then only in accordance with the direction.
There are five Notes to clause 4.
The first Note explains that section 4 of the Commonwealth Act is different, as
it applies to federal court or ACT court proceedings.
The second Note explains that Territory Court is defined in the Dictionary
and that the Bill will apply not only to courts of law but also to persons and
bodies that, in exercising a function under the law of the Northern Territory,
are required to apply the laws of evidence.
14
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
The fourth Note makes it clear that the Bill preserves provisions in other
Northern Territory Acts which relieve a court (for example the coroner’s court)
of the obligation to apply the rules of evidence.
Clause 5 Extended application of certain provisions
Note for section 0
The Commonwealth Act includes a provision that extends the application
of specified provisions of that Act to proceedings in all Australian courts.
Clause 6 Territories
Note for section 6
The Commonwealth Act includes a provision extending that Act to each
external Territory.
Clauses 5 and 6
These contain no substantive provisions. Their inclusion ensures parity in
section numbering with the Commonwealth and New South Wales Acts.
Clause 7 Act binds Crown
This Act binds the Crown in right of the Territory and, to the extent the
legislative power of the Legislative Assembly permits, the Crown in all its
other capacities.
Clause 7
Act binds crown
The Act binds the Crown.
Clause 8 Operation of Acts
This Act does not affect the operation of the provisions of any other Act.
Note for section 8
The Commonwealth Act includes additional subsections relating to the
operation of the Corporations Act 2001 (Cth), the Australian Securities
and Investments Commission Act 2001 (Cth) and certain laws in force in
the Australian Capital Territory. It also provides for the regulations to
have continued effect (until amended) after the commencement of the
Commonwealth section.
Clause 8 Operation of Acts
15
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
The Act does not affect the operation of provisions of other Acts, or override
existing evidentiary provisions in other Acts. Matters relating to relevant
transitional amendments to other Acts will be contained in a separate Bill.
Clause 8A Application of Criminal Code
An offence against this Act is an offence to which Part IIAA of the
Criminal Code applies.
Notes for section 8A
1
Part IIAA of the Criminal Code states the general principles of
criminal responsibility, establishes general defences, and deals with
burden of proof. It also defines, or elaborates on, certain concepts
commonly used in the creation of offences.
2
Section 8A is not included in the NSW Act and Victorian Act.
Clause 8A Application of the Criminal Code
Part IIAA of the Criminal Code will apply to offences against this Act.
Clause 9 Application of common law and equity
(1)
This Act does not affect the operation of a principle or rule of
common law or equity in relation to evidence in a proceeding to
which this Act applies, except so far as this Act provides otherwise
expressly or by necessary intendment.
(2)
Without limiting subsection (1), this Act does not affect the
operation of such a principle or rule so far as it relates to any of the
following:
(a)
admission or use of evidence of reasons for a decision of a
member of a jury, or of the deliberations of a member of a jury
in relation to such a decision, in a proceeding by way of
appeal from a judgment, decree, order or sentence of a court;
(b)
the operation of a legal or evidential presumption that is not
inconsistent with this Act;
(c)
a court's power to dispense with the operation of a rule of
evidence or procedure in an interlocutory proceeding.
Note for section 9
This section differs from section 9 of the Commonwealth Act. That
section preserves the written and unwritten laws of States and
Territories in relation to various matters.
16
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 9
Application of the common law and equity
The Bill will only affect the operation of the principles and rules of common
law or equity relating to evidence in proceedings to which the Bill applies, to
the extent that the Bill expressly provides, or by necessary intendment. In
particular, the operation of such principles and rules will be preserved to the
extent that they are not inconsistent with the Bill.
Clause 10 Parliamentary privilege preserved
(1)
This Act does not affect the law relating to the privileges of any
Australian Parliament or any House of any Australian Parliament.
(2)
In particular, section 15(2) does not affect, and is in addition to, the
law relating to such privileges.
Clause 10 Parliamentary privilege preserved
The Bill preserves the operation of laws relating to the privileges of any
Australian Parliament.
Clause 11 General powers of a court
(1)
The power of a court to control the conduct of a proceeding is not
affected by this Act, except so far as this Act provides otherwise
expressly or by necessary intendment.
(2)
In particular, the powers of a court with respect to abuse of process
in a proceeding are not affected.
Clause 11 General powers of a court
The general power of courts to control proceedings before them are
preserved, except so far as the Bill provides otherwise, either expressly or by
necessary intention.
Chapter 2
Adducing evidence
Introductory note
Outline of this Chapter
This Chapter is about ways in which evidence is adduced.
Part 2.1 is about adducing evidence from witnesses.
Part 2.2 is about adducing documentary evidence.
Part 2.3 is about adducing other forms of evidence.
17
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Part 2.1
Witnesses
Part 2.1 deals with adducing evidence from witnesses. The starting point is
that everyone is presumed competent to testify and may be compelled to give
evidence. This presumption is subject to certain rules and exceptions.
These are ‘lack of capacity’ (cl.14), ‘reduced capacity’ (cl.15), being a head of
state or the NT Administrator, or a parliamentarian during sittings (cl.16),
being a judge or juror (cl.17), being the defendant (cl.18), or being part of the
defendant’s family (cls.19 and 20). An associated defendant is not
compellable to give evidence for or against a defendant unless being tried
separately.
Division 1
Competence and compellability of witnesses
The Northern Territory Bill refers to evidence given on oath and evidence
given otherwise than on oath. This is different to the other Uniform
jurisdictions who use the terms sworn and unsworn. This is to make the Bill
compatible with the terms used in the Oaths Affidavits and Declarations Act
2010.
Clause 12 Competence and compellability
Except as otherwise provided by this Act:
(a)
every person is competent to give evidence; and
(b)
a person who is competent to give evidence about a fact is
compellable to give that evidence.
Clause 12 Competence and compellability
Except as otherwise provided, everyone is competent and compellable as a
witness.
Clause 13 Competence – lack of capacity
(1)
A person is not competent to give evidence about a fact if, for any
reason (including a mental, intellectual or physical disability):
(a)
the person does not have the capacity to understand a
question about the fact; or
(b)
the person does not have the capacity to give an answer that
can be understood to a question about the fact;
and that incapacity cannot be overcome.
18
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Note for subsection (1)
See sections 30 and 31 for examples of assistance that may be
provided to enable witnesses to overcome disabilities.
(2)
A person who, because of subsection (1), is not competent to give
evidence about a fact may be competent to give evidence about
other facts.
(3)
A person who is competent to give evidence about a fact is not
competent to give evidence on oath about the fact if the person
does not have the capacity to understand that, in giving evidence,
he or she is under an obligation to give truthful evidence.
(4)
A person who is not competent to give evidence on oath about a
fact may, subject to subsection (5), be competent to give evidence
about the fact otherwise than on oath.
(5)
A person who, because of subsection (3), is not competent to give
evidence on oath is competent to give evidence otherwise than on
oath if the court has told the person:
(a)
that it is important to tell the truth; and
(b)
that he or she may be asked questions that he or she does
not know, or cannot remember, the answer to, and that he or
she should tell the court if this occurs; and
(c)
that he or she may be asked questions that suggest certain
statements are true or untrue and that he or she should agree
with the statements that he or she believes are true and
should feel no pressure to agree with statements that he or
she believes are untrue.
(6)
It is presumed, unless the contrary is proved, that a person is not
incompetent because of this section.
(7)
Evidence that has been given by a witness does not become
inadmissible merely because, before the witness finishes giving
evidence, he or she dies or ceases to be competent to give
evidence.
(8)
For the purpose of determining a question arising under this
section, the court may inform itself as it thinks fit, including by
obtaining information from a person who has relevant specialised
knowledge based on the person's training, study or experience.
Clause 13 Competence – lack of capacity
This clause sets out the test for determining a witness's competence to give
evidence on oath and otherwise than on oath. Clause 17 sets out separate
19
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
procedures applying to defendants in criminal proceedings.
There are two separate tests for determining competence in relation to giving
evidence on oath and otherwise than on oath. Each test requires a
demonstration of an understanding of the difference between truth and lies.
The 2005 joint Law Reform Commission’s (Joint LRC) Report noted that these
tests have been criticised for being too similar and restrictive. The Bill clarifies
the distinction between evidence given on oath and evidence given otherwise
than on oath and focuses on the ability of the person to act as a witness.
Subclause (1) of this Bill provides that all witnesses must satisfy the test of
general competence. This general test moves away from the ‘truth and lies’
distinction and focuses instead on the ability of the witness to comprehend
and communicate. It provides that a person is not competent to give evidence
(either on oath or not on oath) about a fact if the person lacks the capacity to
understand, or to give an answer that can be understood, to a question about
that fact, and that incapacity cannot be overcome.
Subclause (2) provides that even if the general test of competence is not
satisfied in relation to one fact, a witness may be competent to give evidence
about other facts. For example, a young child may be able to reply to simple
factual questions but not to questions which require inferences to be drawn.
When a person is competent to give evidence, the following subclauses set
out whether that witness should give evidence on oath or not on oath.
Subclause (3) provides that a person is not competent to give sworn evidence
if he or she does not have the capacity to understand that he or she is under
an obligation to give truthful evidence.
Subclause (4) provides that, subject to the requirements of subclause (5)
being met, a person who is not competent to give sworn evidence about a
fact, may be competent to give evidence that is not on oath about the fact.
The provision is intended to allow witnesses such as young children and
others (for example, adults with an intellectual disability) to give unsworn
evidence even though they do not understand concepts such as ‘truth’.
Subclause (5) provides that if a person is not competent to give sworn
evidence because of subclause (3), then the person is competent to give
evidence that is not on oath when certain criteria are met. The court is
required to inform the person of the importance of telling the truth, explain
how the witness should respond to questions to which the witness does not
know or cannot remember the answer, and that the witness should not feel
pressured into agreeing with any statements that are untrue.
Subclause (6) provides that a person is presumed to be competent to give
evidence, unless it is proven that he or she is incompetent.
20
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Subclause (7) provides that evidence given by a witness is not inadmissible
merely because, before the witness finishes giving evidence, that witness dies
or is no longer competent to give evidence.
Subclause (8) provides that, when a court is determining if a person is
competent to give evidence, whether it is evidence on oath or not on oath, the
court may inform itself as it thinks fit, including by reference to the opinion of
an expert.
People with a lack of capacity to understand a question or give an answer are
excluded. The lack of capacity can be from a number of different factors
including age, and mental, physical or intellectual competence.
Some incapacities can be overcome for example, where there are deafness
or language difficulties, and assistance can be provided to overcome the
incapacity. There are, of course, degrees of understanding and simple
questions and answers with a child may be admissible where more complex
concepts and inferences may not.
The common law test that the witness understands ‘the nature and
consequences of the oath’ has been changed to a focus on the capacity to
understand the duty to tell the truth. This obviates the requirement to explore
the religious beliefs of a witness and rests on the understanding of the duty to
tell “the truth, the whole truth, and nothing but the truth.”
The burden of proof rests on the party asserting that the witness is not
competent.
A defendant is not competent, and an associated defendant is not
compellable, to give evidence. The prosecution can however, by trying the
associated defendant separately, make him or her compellable in the
defendant’s trial.
Clause 14 Compellability – reduced capacity
A person is not compellable to give evidence on a particular matter if the
court is satisfied that:
(a)
substantial cost or delay would be incurred in ensuring that the
person would have the capacity to understand a question about the
matter or to give an answer that can be understood to a question
about the matter; and
(b)
adequate evidence on that matter has been given, or will be able to
be given, from one or more other persons or sources.
Clause 14 Compellability – reduced capacity
This clause provides that a person is not compellable to give evidence on a
particular matter if the court is satisfied that substantial cost or delay would be
21
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
involved in ensuring that the person would have the capacity to understand a
question about the matter or to give an answer to it that could be understood.
Clause 15 Compellability – Sovereign and others
(1)
(2)
None of the following is compellable to give evidence:
(a)
the Sovereign;
(b)
the Governor-General;
(c)
the Governor of a State;
(d)
the Administrator of a Territory;
(e)
a foreign sovereign or the Head of State of a foreign country.
A member of a House of an Australian Parliament is not
compellable to give evidence if the member would, if compelled to
give evidence, be prevented from attending:
(a)
a sitting of that House, or a joint sitting of that Parliament; or
(b)
a meeting of a committee of that House or that Parliament,
being a committee of which he or she is a member.
Clause 15 Compellability – Sovereign and others
The Sovereign and others are not compellable to give evidence. The other
persons listed are the Governor-General, the Governor of a State, the
Administrator of a Territory, a foreign sovereign and the Head of State of a
foreign country. The clause also provides that members of a House of any
Australian Parliament are not compellable to give evidence if attending court
would interfere with attendance at a sitting of that House, a joint sitting of that
Parliament or a meeting of a committee of that House or Parliament.
Clause 16 Competence and compellability – judges and jurors
(1)
A person who is a judge or juror in a proceeding is not competent to
give evidence in that proceeding. However, a juror is competent to
give evidence in the proceeding about matters affecting the conduct
of the proceeding.
(2)
A person who is or was a judge in an Australian or overseas
proceeding is not compellable to give evidence about that
proceeding unless the court gives leave.
22
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 16 Competence and compellability – judges and jurors
Judges or jurors are not competent to give evidence in the proceeding in
which they are acting as judges or jurors. However, a juror in a proceeding is
competent to give evidence in the proceeding about matters affecting the
conduct of the proceeding. Further, a person who is or was a judge in an
Australian or overseas proceeding is not compellable to give evidence about
that proceeding unless the court gives leave
Clause 17 Competence and compellability – defendants in criminal
proceedings
(1)
This section applies only in a criminal proceeding.
(2)
A defendant is not competent to give evidence as a witness for the
prosecution.
(3)
An associated defendant is not compellable to give evidence for or
against a defendant in a criminal proceeding, unless the associated
defendant is being tried separately from the defendant.
(4)
If a witness is an associated defendant who is being tried jointly
with the defendant in the proceeding, the court is to satisfy itself (if
there is a jury, in the jury's absence) that the witness is aware of the
effect of subsection (3).
Note for subsections (3) and (4)
associated defendant is defined in the Dictionary.
Clause 17 Competence and compellability – defendants in criminal
proceedings
This clause provides for rules of competence and compellability for
defendants in criminal proceedings and for any associated defendant(s)
(a defined term). A defendant is not competent to give evidence as a witness
for the prosecution. An associated defendant is not compellable to give
evidence for or against a defendant in a criminal proceeding, unless the
associated defendant is being tried separately from the defendant. The court
must ensure an associated defendant is aware of this clause if she or he is
being jointly tried with the defendant.
Clause 18 Compellability of spouses and others in criminal proceedings
generally
(1)
This section applies only in a criminal proceeding.
(2)
A person who, when required to give evidence, is the spouse, de
facto partner, parent or child of a defendant may object to being
23
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
required:
(a)
to give evidence; or
(b)
to give evidence of a communication between the person and
the defendant;
as a witness for the prosecution.
(3)
The objection is to be made before the person gives the evidence
or as soon as practicable after the person becomes aware of the
right so to object, whichever is the later.
(4)
If it appears to the court that a person may have a right to make an
objection under this section, the court is to satisfy itself that the
person is aware of the effect of this section as it may apply to the
person.
(5)
If there is a jury, the court is to hear and determine any objection
under this section in the absence of the jury.
(6)
A person who makes an objection under this section to giving
evidence or giving evidence of a communication must not be
required to give the evidence if the court finds that:
(7)
(a)
there is a likelihood that harm would or might be caused
(whether directly or indirectly) to the person, or to the
relationship between the person and the defendant, if the
person gives the evidence; and
(b)
the nature and extent of that harm outweighs the desirability of
having the evidence given.
Without limiting the matters that may be taken into account by the
court for the purposes of subsection (6), it must take into account
the following:
(a)
the nature and gravity of the offence for which the defendant
is being prosecuted;
(b)
the substance and importance of any evidence that the person
might give and the weight that is likely to be attached to it;
(c)
whether any other evidence concerning the matters to which
the evidence of the person would relate is reasonably
available to the prosecutor;
(d)
the nature of the relationship between the defendant and the
person;
(e)
whether, in giving the evidence, the person would have to
24
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
disclose matter that was received by the person in confidence
from the defendant.
(8)
If an objection under this section has been determined, the
prosecutor may not comment on:
(a)
the objection; or
(b)
the decision of the court in relation to the objection; or
(c)
the failure of the person to give evidence.
Clause 18 Compellability of spouses and others in criminal proceedings
generally
Spouses, de facto partners, parents and children of defendants may object to
being required to give prosecution evidence. When deciding on the
compellability of objecting witnesses, the court must take into account factors
such as the gravity of the offence, the importance of the evidence, the
relationship between the witness and the defendant, and the confidential
nature of a matter that may be disclosed. The witness must not give evidence
if the likelihood that harm would result to the person or their relationship with
the defendant, and the extent of that harm, outweighs the desirability of
receiving the evidence. This is a critical balancing test, relying of course on
judicial discretion.
This is different from the current NT law on the subject where section 9 of the
Evidence Act provides that husbands and wives are compellable in criminal
proceedings.
Clause 19 Compellability of spouses and others in certain criminal
proceedings
Section 18 does not apply in a proceeding for any of the following
offences:
(a)
an offence against section 201, 202, 203, 228, 229, 232, 240 or 246
of the Care and Protection of Children Act;
(b)
an offence against a provision in Part V or VI of the Criminal Code
and the offender is a person under the age of 16 years;
(c)
an offence that is a DVO contravention offence as defined in the
Domestic and Family Violence Act;
25
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(d)
an offence against section 43BI, or a provision in Part VIII, of the
Criminal Code in relation to an offence mentioned in subsection (a)
or (b).
Note for section 19
This section differs from section 19 of the Commonwealth Act, NSW Act
and Victorian Act.
Clause 19 Compellability of spouses and others in certain criminal
proceedings
This clause restricts clause 18 from applying in proceedings regarding Part V
of the Criminal Code (sexual offences) or Part VI of the Criminal Code
(offences of violence) where the offender is a juvenile. It also does not apply
to breaches of the Domestic and Family Violence Act, or offences of
incitement, attempts or preparation for, or accessory after the fact offences
regarding any of the aforementioned offences. Consequently, in matters of
assaults on children and other forms of domestic violence, members of the
defendant’s family may be compelled to give evidence.
Clause 20 Comment on failure to give evidence
(1)
This section applies only in a criminal proceeding for an indictable
offence.
(2)
The judge or any party (other than the prosecutor) may comment
on a failure of the defendant to give evidence. However, unless the
comment is made by another defendant in the proceeding, the
comment must not suggest that the defendant failed to give
evidence because the defendant was, or believed that he or she
was, guilty of the offence concerned.
(3)
The judge or any party (other than the prosecutor) may comment
on a failure to give evidence by a person who, at the time of the
failure, was:
(4)
(a)
the defendant's spouse or de facto partner; or
(b)
a parent or child of the defendant.
However, unless the comment is made by another defendant in the
proceeding, a comment of a kind referred to in subsection (3) must
not suggest that the spouse, de facto partner, parent or child failed
to give evidence because:
(a)
the defendant was guilty of the offence concerned; or
(b)
the spouse, de facto partner, parent or child believed that the
defendant was guilty of the offence concerned.
26
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(5)
If:
(a)
2 or more persons are being tried together for an indictable
offence; and
(b)
comment is made by any of those persons on the failure of
any of those persons or of the spouse or de facto partner, or a
parent or child, of any of those persons to give evidence;
the judge may, in addition to commenting on the failure to give
evidence, comment on any comment of a kind referred to in
paragraph (b).
Clause 20 Comment on failure to give evidence
This clause applies only to a criminal proceeding for an indictable offence.
The clause permits certain comment by the judge or any party (other than the
prosecutor) on a failure by a defendant, his or her spouse or de facto partner
or child, to give evidence.
Any such comment, however, (except when made by a co-defendant) must
not suggest that the failure to give evidence was the result of the defendant’s
guilt or belief of his or her guilt. If such comment is made by or on behalf of a
co-defendant, the judge may comment on both the failure to give evidence
and the co-defendant's comment.
A co-defendant may, however, comment. A judge can point out that the
circumstantial evidence of the prosecution has not been contradicted by the
defendant, but the judge should, and usually does, warn the jury against
adopting an impermissible chain of reasoning from the silence of the accused.
The judge (or a co-accused), but not the prosecutor, may comment on the
failure of the defendant’s family not to give evidence, and the same rules
apply as regards comments on the defendant’s own failure to give evidence,
i.e. not to suggest the failure is because of the defendant’s guilt or the family
member’s belief in the defendant’s guilt.
Division 2
Oaths
Clause 21 Evidence of witnesses to be on oath
(1)
A witness in a proceeding must take an oath before giving
evidence.
(2)
Subsection (1) does not apply to a person who gives evidence
otherwise than on oath under section 13.
27
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(3)
A person who is called merely to produce a document or thing to
the court need not take an oath.
Note for section 0
This section departs from the corresponding provision in other
jurisdictions because of the provisions in the Oaths, Affidavits and
Declarations Act.
Clause 21 Evidence of witnesses to be on oath
A person is required to take an oath before giving sworn evidence, unless the
person is giving evidence other than on oath pursuant to clause 13. The
requirement does not apply to a person called merely to produce a document
or thing to a court.
Clause 22 Interpreters to act on oath
(1)
A person must take an oath before acting as an interpreter in a
proceeding.
(1A) An oath taken by a person before acting as an interpreter on a day
is taken for the purposes of subsection (1) to be an oath taken by
that person for the purposes of any subsequent proceedings in that
court on that day in which the person acts as an interpreter.
Notes for section 22
1 The Commonwealth Act does not include subsection (1A).
2 This section departs from the corresponding provision in other
jurisdictions because of the provisions in the Oaths, Affidavits
and Declarations Act.
Clause 22 Interpreters to act on oath or affirmation
Interpreters must either take an oath or make an affirmation. Oaths or
affirmations by interpreters must be made in the forms set out in the Schedule
to the Bill, or in a similar form. An affirmation has the same effect as an oath.
Clause 23 Choice of oath or affirmation
Note for section 23
This section is not needed because of the provisions in the Oaths,
Affidavits and Declarations Act.
Clause 23 Choice of oath or affirmation
Witnesses and interpreters may choose whether to take an oath or make an
affirmation and the court must inform these people of this choice. If a witness
28
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
refuses to take an oath or make an affirmation, or it is not reasonably
practicable for the witness to take the appropriate oath, the court may direct
the witness to make an affirmation.
Clause 24 Requirements for oaths
Note for section 24
This section is not needed because of the provisions in the Oaths,
Affidavits and Declarations Act.
Clause 24 Requirements for oaths
It is not necessary to use a religious text to take an oath. An oath is deemed
effective whether or not the person who takes it has, in fact, a religious belief
or actually understands the nature or consequences of the oath.
Clause 25 Rights to make unsworn statements unaffected
Note for section 25
The Commonwealth Act formerly included a provision that preserves any
right that a defendant in a criminal proceeding has under a law of a State
or Territory to make an unsworn statement. That provision has now
been repealed.
Clause 25
This clause contains no substantive provisions. Its inclusion ensures parity in
section numbering with the Commonwealth and New South Wales Acts.
Division 3
General rules about giving evidence
This division deals with procedural rules to do with giving evidence. The order
of examination in chief, cross-examination and re-examination is set out, and
evidence may be given by charts, in narrative form or through an interpreter.
It has even been held in appropriate cases that evidence may be given in a
group. Particular categories of witnesses may give their best evidence in
different ways. Experts, children, Aboriginal and Torres Straight Islanders, or
people with intellectual disabilities may benefit from a narrative form of giving
evidence.
Clause 26 Court's control over questioning of witness
The court may make such orders as it considers just in relation to:
(a)
the way in which witnesses are to be questioned; and
29
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(b)
the production and use of documents and things in connection with
the questioning of witnesses; and
(c)
the order in which parties may question a witness; and
(d)
the presence and behaviour of any person in connection with the
questioning of witnesses.
Clause 26 Court’s control over questioning of witness
The court may make orders it considers just, regarding the way in which
witnesses are questioned, while ensuring that all parties have a fair trial.
Such orders may include the way in which witnesses are to be questioned,
the use of documents and things, the order in which parties may question the
witness and the presence and behaviour of any person in connection with the
questioning of a witness.
Clause 27 Parties may question witnesses
A party may question any witness, except as provided by this Act.
Clause 27 Parties may question witness
Every party is entitled to question any witness who gives evidence, unless the
Bill provides otherwise.
Clause 28 Order of examination in chief, cross-examination and
re-examination
Unless the court otherwise directs:
(a)
cross-examination of a witness is not to take place before the
examination in chief of the witness; and
(b)
re-examination of a witness is not to take place before all other
parties who wish to do so have cross-examined the witness.
Clause 28 Order of examination in chief, cross-examination and
re-examination
This clause preserves the traditional order of questioning and sets out the
order in which parties are to conduct examination in chief, cross-examination
and re-examination, unless the court directs otherwise.
30
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 29 Manner and form of questioning witnesses and their
responses
(1)
A party may question a witness in any way the party thinks fit,
except as provided by this Chapter or as directed by the court.
(2)
A court may, on its own motion or on the application of the party
that called the witness, direct that the witness give evidence wholly
or partly in narrative form.
(3)
Such a direction may include directions about the way in which
evidence is to be given in that form.
(4)
Evidence may be given in the form of charts, summaries or other
explanatory material if it appears to the court that the material would
be likely to aid its comprehension of other evidence that has been
given or is to be given.
Clause 29 Manner and form of questioning witnesses and their
responses
This clause states the general rule that, subject to the Bill and the control of
the court, it is up to the parties to determine how to question witnesses.
The customary way in which witnesses are examined is that the witness
answers questions. However, this method of giving evidence may be
unsuitable for certain witnesses, including, but not limited to, children, people
with an intellectual disability and people who otherwise may not be
accustomed to this style of communication.
Accordingly, the Bill allows a witness, in certain circumstances, to give
evidence wholly or partly in narrative form, and evidence may also be given in
the form of charts, summaries or other explanatory material if it appears to the
court that the material would be likely to aid comprehension of other evidence.
Clause 30 Interpreter
A witness may give evidence about a fact through an interpreter unless
the witness can understand and speak the English language sufficiently
to enable the witness to understand, and to make an adequate reply to,
questions that may be put about the fact.
Clause 30 Interpreter
A witness who cannot understand and speak English sufficiently to enable
them to understand and adequately reply to questions, may give evidence
through an interpreter. This does not in any way derogate from the common
law requirement for interpreters to be used in order to ensure a fair trial.
31
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
The onus is now on the court to reject a request for an interpreter rather than
on the party seeking the interpreter to justify the need. The court, of course,
controls the use of interpreters.
Clause 31 Deaf and mute witnesses
(1)
A witness who cannot hear adequately may be questioned in any
appropriate way.
(2)
A witness who cannot speak adequately may give evidence by any
appropriate means.
(3)
The court may give directions concerning either or both of the
following:
(4)
(a)
the way in which a witness may be questioned under
subsection (1);
(b)
the means by which a witness may give evidence under
subsection (2).
This section does not affect the right of a witness to whom this
section applies to give evidence about a fact through an interpreter
under section 30.
Clause 31 Deaf and mute witnesses
A witness who cannot speak or hear adequately may be questioned and give
evidence in an appropriate way. The court is able to give directions on the
manner in which such witnesses may be questioned and the means by which
they may give evidence.
Clause 32 Attempts to revive memory in court
(1)
A witness must not, in the course of giving evidence, use a
document to try to revive his or her memory about a fact or opinion
unless the court gives leave.
(2)
Without limiting the matters that the court may take into account in
deciding whether to give leave, it is to take into account:
(a)
whether the witness will be able to recall the fact or opinion
adequately without using the document; and
(b)
whether so much of the document as the witness proposes to
use is, or is a copy of, a document that:
(i)
was written or made by the witness when the events
recorded in it were fresh in his or her memory; or
32
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(ii)
was, at such a time, found by the witness to be accurate.
(3)
If a witness has, while giving evidence, used a document to try to
revive his or her memory about a fact or opinion, the witness may,
with the leave of the court, read aloud, as part of his or her
evidence, so much of the document as relates to that fact or
opinion.
(4)
The court is, on the request of a party, to give such directions as the
court thinks fit to ensure that so much of the document as relates to
the proceeding is produced to that party.
Clause 32 Attempts to revive memory in court
This clause allows a court greater flexibility in reviving a witness’s memory in
court than the common law. A witness may use a document to revive memory
about a fact or opinion, but only with the leave of the court. The clause sets
out some of the matters the court may take into account in determining
whether to give leave (whether, for example, the witness will be able to recall
the fact or opinion adequately without using the document).
The court must first give leave, and the witness who is unable to give a full
and accurate account of what occurred from his or her unaided memory, may
refresh that memory from documents. The phrase ‘fresh in the memory’ is
used instead of ‘contemporaneous’ for the time when the document was
made, and the court must take the freshness of the memory into account
when deciding whether to grant leave. The clause does not, however,
disqualify refreshing memory from a document made when the memory was
not fresh. The witness may, with leave of the court, read aloud from a
document.
Clause 33 Evidence given by police officers
(1)
Despite section 32, in any criminal proceeding, a police officer may
give evidence in chief for the prosecution by reading or being led
through a written statement previously made by the police officer.
(2)
Evidence may not be so given unless:
(a)
the statement was made by the police officer at the time of or
soon after the occurrence of the events to which it refers; and
(b)
the police officer signed the statement when it was made; and
(c)
a copy of the statement had been given to the person charged
or to the person's Australian legal practitioner or legal counsel
a reasonable time before the hearing of the evidence for the
prosecution.
33
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(3)
A reference in this section to a police officer includes a reference to
a person who, at the time the statement concerned was made, was
a police officer.
Clause 33 Evidence given by police officers
This clause allows a police officer to read, or be led through, his or her written
statement (provided it was made at the time or soon after the event) as
evidence in chief. The officer does not need to have exhausted his or her
memory.
Clause 34 Attempts to revive memory out of court
(1)
The court may, on the request of a party, give such directions as
are appropriate to ensure that specified documents and things used
by a witness otherwise than while giving evidence to try to revive
his or her memory are produced to the party for the purposes of the
proceeding.
(2)
The court may refuse to admit the evidence given by the witness so
far as it concerns a fact as to which the witness so tried to revive his
or her memory if, without reasonable excuse, the directions have
not been complied with.
Clause 34 Attempts to revive memory out of court
The court, at the request of a party, may direct production of specified
documents used by a witness to revive his or her memory out of court. A
police officer for example may have used another police officer’s statement to
aid memory when preparing his or her statement. The court may refuse to
admit the evidence if the witness does not comply with the directions of the
court.
Clause 35 Effect of calling for production of documents
(1)
(2)
A party is not to be required to tender a document only because the
party, whether under this Act or otherwise:
(a)
called for the document to be produced to the party; or
(b)
inspected it when it was so produced.
The party who produces a document so called for is not entitled to
tender it only because the party to whom it was produced, or who
inspected it, fails to tender it.
34
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 35 Effect of calling for production of documents
This clause provides that a party who calls for another party’s document is not
required to automatically tender it. Similarly the party who produces the
document is not automatically entitled to tender it if the calling party does not
tender it.
This means the common law rule in Walker v Walker (1937) 57 CLR 630, is
abolished. The old common law rule was that if one party called for and
inspected a document in the possession of the other party the first party could
be required to tender the document by the other party even if it was otherwise
inadmissible. Clause 35 removes the automatic right to tender, or require the
other party to tender, but does not prevent the tender if the document is
otherwise admissible.
Clause 36 Person may be examined without subpoena or other process
(1)
The court may order a person who:
(a)
is present at the hearing of a proceeding; and
(b)
is compellable to give evidence in the proceeding;
to give evidence and to produce documents or things even if a
subpoena or other process requiring the person to attend for that
purpose has not been duly served on the person.
(2)
A person so ordered to give evidence or to produce documents or
things is subject to the same penalties and liabilities as if the person
had been duly served with such a subpoena or other process.
(3)
A party who inspects a document or thing produced to the court
because of subsection (1) need not use the document in evidence.
Clause 36 Person may be examined without subpoena or other process
A court may order a person who is present at proceedings to give evidence or
produce documents if the person could be compelled by way of subpoena,
summons or other order to testify and produce the documents. It is irrelevant
whether or not the document is admissible, and once it has been produced,
depending on privilege, it is in the court’s discretion whether or not to make it
available to a party.
Division 4
Examination in chief and re-examination
35
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 37 Leading questions
(1)
A leading question must not be put to a witness in examination in
chief or in re-examination unless:
(a)
the court gives leave; or
(b)
the question relates to a matter introductory to the witness's
evidence; or
(c)
no objection is made to the question and (leaving aside the
party conducting the examination in chief or re-examination)
each other party to the proceeding is represented by an
Australian legal practitioner, legal counsel or prosecutor; or
(d)
the question relates to a matter that is not in dispute; or
(e)
if the witness has specialised knowledge based
witness's training, study or experience – the question
for the purpose of obtaining the witness's opinion
hypothetical statement of facts, being facts in respect
evidence has been, or is intended to be, given.
on the
is asked
about a
of which
(2)
Unless the court otherwise directs, subsection (1) does not apply in
civil proceedings to a question that relates to an investigation,
inspection or report that the witness made in the course of carrying
out public or official duties.
(3)
Subsection (1) does not prevent a court from exercising power
under rules of court to allow a written statement or report to be
tendered or treated as evidence in chief of its maker.
Note for section 37
Leading question is defined in the Dictionary.
Clause 37 Leading questions
A leading question cannot be put to a witness in examination in chief or
re-examination unless leave is given or one of the specified circumstances in
subclause (1) applies. Such circumstances include where the question
relates to a matter introductory to the evidence of the witness, or a matter that
is not in dispute, or is asked for the purpose of obtaining an expert witness's
opinion about a hypothetical statement of facts about which evidence has or is
intended to be given.
Leave is also not required where all the parties to the proceeding (other than
the party examining the witness) are represented by a lawyer and no
objection is made.
36
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Further, unless the court otherwise directs, in civil proceedings leading
questions may be put to a witness relating to an investigation, inspection or
report the witness made in the course of carrying out public or official duties.
Subclause (3) enables the court to allow a written statement or report to be
tendered or treated as evidence in chief of its maker.
Clause 38 Unfavourable witnesses
(1)
A party who called a witness may, with the leave of the court,
question the witness, as though the party were cross-examining the
witness, about:
(a)
evidence given by the witness that is unfavourable to the party;
or
(b)
a matter of which the witness may reasonably be supposed to
have knowledge and about which it appears to the court the
witness is not, in examination in chief, making a genuine
attempt to give evidence; or
(c)
whether the witness has, at any time, made a prior
inconsistent statement.
(2)
Questioning a witness under this section is taken to be crossexamination for the purposes of this Act (other than section 39).
(3)
The party questioning the witness under this section may, with the
leave of the court, question the witness about matters relevant only
to the witness's credibility.
Note for subsection (3)
The rules about admissibility of evidence relevant only to credibility
are set out in Part 3.7.
(4)
Questioning under this section is to take place before the other
parties cross-examine the witness, unless the court otherwise
directs.
(5)
If the court so directs, the order in which the parties question the
witness is to be as the court directs.
(6)
Without limiting the matters that the court may take into account in
determining whether to give leave or a direction under this section,
it is to take into account:
(a)
whether the party gave notice at the earliest opportunity of the
party's intention to seek leave; and
37
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(b)
(7)
the matters on which, and the extent to which, the witness has
been, or is likely to be, questioned by another party.
A party is subject to the same liability to be cross-examined under
this section as any other witness if:
(a)
a proceeding is being conducted in the name of the party by or
on behalf of an insurer or other person; and
(b)
the party is a witness in the proceeding.
Clause 38 Unfavourable witnesses
The common law rules regarding ‘Hostile’ or ‘Adverse’ witnesses have been
changed by clause 38. An unfavourable witness may now, with the leave of
the court, be cross-examined by the party who called them. The witness may
be cross-examined if the witness gives ‘unfavourable’ evidence to the calling
party, does not appear to be making a genuine attempt to give evidence of a
matter about which the witness may reasonably be supposed to have
knowledge, or if the witness has made a prior statement that is inconsistent
with their in court testimony.
The witness may be cross-examined on only a part of the evidence if the rest
of the evidence is favourable. ‘Unfavourable’ is not defined but has a lower
threshold than the word ‘hostile’ which was the threshold at common law. The
prosecution can, with the leave of the Court, call a witness known to be
unfavourable to the prosecution in order to adduce evidence of a prior
inconsistent statement and then, subject to clause 60, (i.e. it is introduced for
another purpose), use it to prove the truth of that prior assertion. This is
different to the position at common law.
Unfavourable evidence to the party calling the witness may emerge during
cross examination of that witness. This may be unexpected, or it may be
because the prosecution is ‘keeping its powder dry’. The prosecution can
then, in re-examination, ask for leave under clause 38 to cross-examine the
witness. If leave is granted the defence can then cross-examine the witness
again and no unfairness is caused. This clause was included in the UEA to
overcome the High Court decision of Vocisano v Vocisano (1974) 130 CLR
267, where an authorised insurer who had taken over proceedings on behalf
of an insured defendant, was not allowed to cross-examine that insured
defendant about his earlier inconsistent statements to the effect that he was
not the driver of the car in question.
Clause 39 Limits on re-examination
On re-examination:
(a)
a witness may be questioned about matters arising out of evidence
given by the witness in cross-examination; and
38
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(b)
other questions may not be put to the witness unless the court gives
leave.
Clause 39 Limits on re-examination
Re-examination is limited to ‘matters arising out of evidence given by the
witness in cross-examination’, but leave can be given for other questions to
be put.
For example, credibility issues may have surfaced during
cross-examination and it may be appropriate to re-establish the witness’s
credibility during re-examination.
It is appropriate to allow further
cross-examination where new evidence has been adduced in re-examination.
Division 5
Cross-examination
Clause 40 Witness called in error
A party is not to cross-examine a witness who has been called in error by
another party and has not been questioned by that other party about a
matter relevant to a question to be determined in the proceeding.
Clause 40 Witness called in error
A party is prohibited from cross-examining a witness who another party has
called in error unless the witness has given evidence in the proceeding.
Clause 41 Improper questions
(1)
The court may disallow an improper question or improper
questioning put to a witness in cross-examination, or inform the
witness that it need not be answered.
(2)
The court must disallow an improper question or improper
questioning put to a vulnerable witness in cross-examination, or
inform the witness that it need not be answered, unless the court is
satisfied that, in all the relevant circumstances of the case, it is
necessary for the question to be put.
(3)
In this section:
improper question or improper questioning means a question or
a sequence of questions put to a witness that:
(a)
is misleading or confusing; or
(b)
is unduly annoying, harassing, intimidating, offensive,
oppressive, humiliating or repetitive; or
(c)
is put to the witness in a manner or tone that is belittling,
insulting or otherwise inappropriate; or
39
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(d)
(4)
has no basis other than a stereotype (for example, a
stereotype based on the witness's sex, race, culture,
ethnicity, age or mental, intellectual or physical disability).
For the purposes of subsection (2), a witness is a vulnerable
witness if the witness:
(a)
is under the age of 18 years; or
(b)
has a cognitive impairment or an intellectual disability; or
(c)
is a witness whom the court considers to be vulnerable having
regard to:
(i)
any relevant condition or characteristic of the witness of
which the court is, or is made aware, including age,
education, ethnic and cultural background, gender,
language background and skills, level of maturity and
understanding and personality; and
(ii)
any mental or physical disability of which the court is, or
is made, aware and to which the witness is, or appears to
be, subject; and
(iii) the context in which the question is put, including:
(A) the nature of the proceeding; and
(B) in a criminal proceeding – the nature of the offence
to which the proceeding relates; and
(C) the relationship (if any) between the witness and any
other party to the proceeding.
(5)
A question is not an improper question merely because:
(a)
the question challenges the truthfulness of the witness or the
consistency or accuracy of any statement made by the
witness; or
(b)
the question requires the witness to discuss a subject that
could be considered distasteful to, or private by, the witness.
(6)
A party may object to a question put to a witness on the ground that
it is an improper question.
(7)
However, the duty imposed on the court by this section applies
whether or not an objection is raised to a particular question.
(8)
A failure by the court to disallow a question under this section, or to
inform the witness that it need not be answered, does not affect the
40
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
admissibility in evidence of any answer given by the witness in
response to the question.
Notes for section 41
1
A person must not, without the express permission of a court,
print or publish any question that the court has disallowed
under this section – see section 195.
2
Section 41 differs from the Commonwealth Act and NSW Act.
Clause 41 Improper questions
The NT Bill differs slightly in clause 41, from the Commonwealth and NSW
Acts, and follows the Victorian Act. The NT Bill refers to questioning rather
than just questions, and can refer to a sequence of questions, not just
individual questions. The clause is designed not to ‘unduly hamper the trial
techniques of advocates’, but disallows improper questioning and misleading
or confusing questioning in cross-examination. Special protection is given to
‘vulnerable witnesses’, and there is a mandatory obligation to consider all
relevant circumstances which is designed to facilitate a positive culture of
judicial intervention for these witnesses.
Subclause (3) defines an improper question or improper questioning in a
broad manner, and outlines a non-exhaustive list of the content or style of
questions that the court must find to be improper. They include questions that
are misleading or confusing, unduly annoying, harassing, intimidating,
offensive or repetitive, or questions put in a belittling, insulting or inappropriate
manner, or if the only basis of the question is a stereotype. The court has
discretion to disallow these questions in relation to any witness, but must
disallow them in relation to vulnerable witnesses.
The word ‘unduly’ qualifies ‘annoying, harassing, intimidating, offensive,
oppressive, humiliating or repetitive’. This implies there are occasions when
annoying, harassing etc questions are justified. The right of a party in an
adversarial system to properly test a witness’s evidence is taken into account
and balanced against stress or embarrassment caused to the witness, which
may be necessary for effective cross-examination. The onus is on the party
putting the question to demonstrate that the proposed question is necessary,
and any answer given to an improper question that was not disallowed by the
court is still admissible.
Subclause (4) defines vulnerable witnesses as people under the age of
18 years and people with a cognitive impairment. This is intended to prevent
argument about whether or not the obligation to disallow, under subclause (2),
applies to such people. The subclause also sets out other conditions or
characteristics that may cause people to be categorised as vulnerable. These
factors include the:
41
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act

age (including, for example, advanced age) and cultural background of
the witness;

mental or physical capacity (for example, where it does not necessarily
constitute cognitive impairment) of the witness; and

context of the case or the context in which the questions are put,
including the relationship between the witness and any party to the
proceeding.
This is intended to minimise the need for argument about whether a witness is
vulnerable. In some cases the vulnerability will be obvious, but in others, it
may be the circumstances of the case that cause the witness to be
vulnerable.
Subclause (5) provides that a question is not disallowable merely because it
challenges the truthfulness of the witness or the consistency or accuracy of
any statements made by the witness, or the subject of the questions is
considered by the witness to be distasteful or private.
Subclause (6) enables a party to object to an improper question put to a
witness. However, the absence of such an objection does not remove the
court's obligation to monitor questions. Subclause (7) makes it clear that the
relevant duties apply whether or not an objection is raised. This subclause is
intended to ensure that the court takes an active role in monitoring questions
and ensuring the appropriate regulation of questions in cross-examination.
As specified in subclause (8), a failure by the court to disallow a question
under clause 41 will not affect the admissibility of the witness's answer. The
purpose of this clause is not to diminish the duty on the court to effectively
regulate improper questions. Rather, it is designed to ensure that such a
failure will not render the evidence elicited inadmissible, and therefore the
proceeding subject to appeal.
The first Note to clause 41 is a cross reference to clause 195 which prohibits
the publication of disallowed questions unless the express permission of the
court has been obtained.
The common law rules as to what is an improper question still apply. For
example it is improper to put to one witness that their evidence is different to
others and invite an opinion as to why this is so.
The NT rules of evidence relating to sexual offences in the Sexual Offences
(Evidence and Procedure) Act still apply, and the rules relating to vulnerable
witnesses, for example in 26E of the Northern Territory Evidence Act, will also
remain, although these provisions will, when this Act commences, be placed
in another Act. A national working group is finalising a uniform approach to
children’s and other vulnerable witness’s evidence in sexual assault cases
with a view to harmonisation of the various jurisdictions’ differing laws on the
42
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
subject. The UEA does not at present cover the field, and seems unlikely to
do so in the future.
Part VIA of the Evidence Act deals with the protection of confidential
communications between alleged victims of sexual assault and his or her
counsellor. It is intended that these, or similar provisions, be retained in
another Act (i.e. not the UEA).
Clause 42 Leading questions
(1)
A party may put a leading question to a witness in crossexamination unless the court disallows the question or directs the
witness not to answer it.
(2)
Without limiting the matters that the court may take into account in
deciding whether to disallow the question or give such a direction, it
is to take into account the extent to which:
(a)
evidence that has been given by the witness in examination in
chief is unfavourable to the party who called the witness; and
(b)
the witness has an interest consistent with an interest of the
cross-examiner; and
(c)
the witness is sympathetic to the party conducting the crossexamination, either generally or about a particular matter; and
(d)
the witness's age, or any mental, intellectual or physical
disability to which the witness is subject, may affect the
witness's answers.
(3)
The court is to disallow the question, or direct the witness not to
answer it, if the court is satisfied that the facts concerned would be
better ascertained if leading questions were not used.
(4)
This section does not limit the court's power to control leading
questions.
Note for section 42
Leading question is defined in the Dictionary.
Clause 42 Leading Questions
A party may put a leading question to a witness in cross-examination, unless
the court disallows the question or directs the witness not to answer it. In
deciding whether to disallow a leading question or give a direction regarding
it, the court is to take into account, among other things, unusual susceptibility
due to the witness's age, any mental, intellectual or physical disability that
43
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
may affect the witness's answer, and the extent, if any, to which the witness or
the witness's evidence is sympathetic to the cross-examiner.
Subclause (4) expands the court’s power to control leading questions and
would expressly allow the court to cover the situation that commonly occurs in
NT trials of ‘gratuitous concurrence’.
The court is to disallow leading questions if it considers the facts would be
better ascertained if a leading question was not used.
Clause 43 Prior inconsistent statements of witnesses
(1)
(2)
(3)
A witness may be cross-examined about a prior inconsistent
statement alleged to have been made by the witness whether or
not:
(a)
complete particulars of the statement have been given to the
witness; or
(b)
a document containing a record of the statement has been
shown to the witness.
If, in cross-examination, a witness does not admit that he or she
has made a prior inconsistent statement, the cross-examiner is not
to adduce evidence of the statement otherwise than from the
witness unless, in the cross-examination, the cross-examiner:
(a)
informed the witness of enough of the circumstances of the
making of the statement to enable the witness to identify the
statement; and
(b)
drew the witness's attention to so much of the statement as is
inconsistent with the witness's evidence.
For the purpose of adducing evidence of the statement, a party may
re-open the party's case.
Clause 43 Prior inconsistent statements of witnesses
This clause sets out the manner in which prior inconsistent statements of a
witness may be put to the witness in cross-examination.
Clause 44 Previous representations of other persons
(1)
Except as provided by this section, a cross-examiner must not
question a witness about a previous representation alleged to have
been made by a person other than the witness.
44
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(2)
(3)
(4)
A cross-examiner may question a witness about the representation
and its contents if:
(a)
evidence of the representation has been admitted; or
(b)
the court is satisfied that it will be admitted.
If subsection (2) does not apply and the representation is contained
in a document, the document may only be used to question a
witness as follows:
(a)
the document must be produced to the witness;
(b)
if the document is a tape recording, or any other kind of
document from which sounds are reproduced – the witness
must be provided with the means (for example, headphones)
to listen to the contents of the document without other persons
present at the cross-examination hearing those contents;
(c)
the witness must be asked whether, having examined (or
heard) the contents of the document, the witness stands by the
evidence that he or she has given;
(d)
neither the cross-examiner nor the witness is to identify the
document or disclose any of its contents.
A document that is so used may be marked for identification.
Clause 44 Previous representations of other persons
This clause sets out the only manner in which a witness may be crossexamined about a prior statement made by some other person.
Clause 45 Production of documents
(1)
(2)
This section applies if a party is cross-examining or has crossexamined a witness about:
(a)
a prior inconsistent statement alleged to have been made by
the witness that is recorded in a document; or
(b)
a previous representation alleged to have been made by
another person that is recorded in a document.
If the court so orders or if another party so requires, the party must
produce:
(a)
the document; or
45
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(b)
such evidence of the contents of the document as is available
to the party;
to the court or to that other party.
(3)
The court may:
(a)
examine a document or evidence that has been so produced;
and
(b)
give directions as to its use; and
(c)
admit it even if it has not been tendered by a party.
(4)
Subsection (3) does not permit the court to admit a document or
evidence that is not admissible because of Chapter 3.
(5)
The mere production of a document to a witness who is being
cross-examined does not give rise to a requirement that the crossexaminer tender the document.
Clause 45 Production of documents
This clause provides for the production and examination of a document during
cross-examination about an alleged prior inconsistent statement made by a
witness, or a previous representation made by a person other than a witness.
Merely showing a document to a witness who is being cross-examined will not
require a party to tender it.
Clause 46 Leave to recall witnesses
(1)
(2)
The court may give leave to a party to recall a witness to give
evidence about a matter raised by evidence adduced by another
party, being a matter on which the witness was not cross-examined,
if the evidence concerned has been admitted and:
(a)
it contradicts evidence about the matter given by the witness in
examination in chief; or
(b)
the witness could have given evidence about the matter in
examination in chief.
A reference in this section to a matter raised by evidence adduced
by another party includes a reference to an inference drawn from,
or that the party intends to draw from, that evidence.
Clause 46 Leave to recall witnesses
A court may give leave to recall a witness where evidence was adduced by
another party and the witness was not cross-examined on the matter, if the
46
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
evidence contradicts that witness’s evidence in examination in chief, or the
witness could have given evidence about it in evidence in chief (but did not).
This overlaps the rule of fairness in Brown v Dunn (1893) 6 R 67 although it
may not extend as far as the common law rule. The rule is narrower in
criminal proceedings than in civil proceedings but to some extent still applies.
Thus if a defendant has an opportunity to cross-examine on an alleged
inconsistency but does not, that failure may prevent a reliance on the alleged
inconsistency to undermine the witness’s credibility later on, without that
failure to cross-examine being taken into account ‘in assessing the weight to
be given the inconsistencies’.
The provision is designed to facilitate the recall of a witness in these
situations, with the leave of the court, and when it is appropriate.
Part 2.2
Documents
Part 2.2 deals with proving the contents of documents. The common law
‘best evidence’ rule and the ‘original document’ rule are abolished by
clause 51.
Discovery can be ordered by the court under clause 193, and the new rules
extend discovery to include tapes, discs and microfilms etc. The rules are
designed to be simpler, more flexible and to take into account advances in
technology regarding storage and copying of data. The system itself
becomes the document with regard to computer records.
Clause 47 Definitions
(1)
A reference in this Part to a document in question is a reference
to a document as to the contents of which it is sought to adduce
evidence.
(2)
A reference in this Part to a copy of a document in question
includes a reference to a document that is not an exact copy of the
document in question but that is identical to the document in
question in all relevant respects.
Clause 47 Definitions
A copy of a document need not be an exact copy of the document but can be
‘identical to the document in question in all relevant aspects’. (clause 48(2))
This includes printouts and transcripts.
47
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 48 Proof of contents of documents
(1)
A party may adduce evidence of the contents of a document in
question by tendering the document in question or by any one or
more of the following methods:
(a)
adducing evidence of an admission made by another party to
the proceeding as to the contents of the document in question;
(b)
tendering a document that:
(i)
is or purports to be a copy of the document in question;
and
(ii)
has been produced, or purports to have been produced,
by a device that reproduces the contents of documents;
(c)
if the document in question is an article or thing by which
words are recorded in such a way as to be capable of being
reproduced as sound, or in which words are recorded in a
code (including shorthand writing) – tendering a document that
is or purports to be a transcript of the words;
(d)
if the document in question is an article or thing on or in which
information is stored in such a way that it cannot be used by
the court unless a device is used to retrieve, produce or collate
it – tendering a document that was or purports to have been
produced by use of the device;
(e)
tendering a document that:
(f)
(i)
forms part of the records of or kept by a business
(whether or not the business is still in existence); and
(ii)
is or purports to be a copy of, or an extract from or a
summary of, the document in question, or is or purports
to be a copy of such an extract or summary;
if the document in question is a public document – tendering a
document that is or purports to be a copy of the document in
question and that is or purports to have been printed:
(i)
by a person authorised by or on behalf of the
Government to print the document or by the Government
Printer of the Commonwealth or by the government or
official printer of a State or another Territory; or
(ii)
by the authority of the Government or administration of
the Territory, the Commonwealth, a State, another
Territory or a foreign country; or
48
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(iii) by authority of an Australian Parliament, a House of an
Australian Parliament, a committee of such a House or a
committee of an Australian Parliament.
(2)
Subsection (1) applies to a document in question whether the
document in question is available to the party or not.
(3)
If the party adduces evidence of the contents of a document under
subsection (1)(a), the evidence may only be used:
(4)
(a)
in respect of the party's case against the other party who made
the admission concerned; or
(b)
in respect of the other party's case against the party who
adduced the evidence in that way.
A party may adduce evidence of the contents of a document in
question that is not available to the party, or the existence and
contents of which are not in issue in the proceeding, by:
(a)
tendering a document that is a copy of, or an extract from or
summary of, the document in question; or
(b)
adducing from a witness evidence of the contents of the
document in question.
Notes for section 48
1 Clause 5 of Part 2 of the Dictionary is about the availability of
documents.
2 Section 182 of the Commonwealth Act gives section 48 of the
Commonwealth Act a wider application in relation to
Commonwealth records and certain Commonwealth documents.
Clause 48 Proof of contents of documents
Evidence of the contents of a document can be adduced by tendering the
document or by any one or more of the following methods:
(i)
adducing evidence of an admission made by another party about its
contents;
(ii)
tendering a copy of the document produced by a device (for example, a
photocopier or a word processor) that reproduces the contents of
documents;
(iii)
if the content of the document is not in visible form (for example, a
tape-recording) or is in a code (for example, shorthand notes),
tendering a transcript;
49
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(iv)
if the document is an article or thing on or in which information is stored
in such a way that it cannot be used unless a device is used to retrieve,
produce or collate it, tendering a document produced by the device (for
example, computer output or a document produced by an optical laser
disc reader);
(v)
tendering a business record that is an extract from, or a summary or
copy of, the document; and
(vi)
if the document is a public document, tendering an official printed copy
of the document.
The clause provides that a party to whom a document is not available may
lead evidence of the contents of the document by tendering a copy, extract or
a summary of the document or adducing evidence of the contents of the
document from a witness.
Clause 49 Documents in foreign countries
No paragraph of section 48(1) (other than paragraph (a)) applies to a
document that is in a foreign country unless:
(a)
the party who adduces evidence of the contents of the document in
question has, not less than 28 days (or such other period as may be
prescribed by the regulations or by rules of court) before the day on
which the evidence is adduced, served on each other party a copy
of the document proposed to be tendered; or
(b)
the court directs that it is to apply.
Note for section 49
Section 182 of the Commonwealth Act gives section 49 of the
Commonwealth Act a wider application in relation to Commonwealth
records and certain Commonwealth documents.
Clause 49 Documents in foreign countries
As the title suggests, this clause provides for proof of documents in foreign
countries.
Clause 50 Proof of voluminous or complex documents
(1)
The court may, on the application of a party, direct that the party
may adduce evidence of the contents of 2 or more documents in
question in the form of a summary if the court is satisfied that it
would not otherwise be possible conveniently to examine the
50
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
evidence because of the volume or complexity of the documents in
question.
(2)
(3)
The court may only make such a direction if the party seeking to
adduce the evidence in the form of a summary has:
(a)
served on each other party a copy of the summary that
discloses the name and address of the person who prepared
the summary; and
(b)
given each other party a reasonable opportunity to examine or
copy the documents in question.
The opinion rule does not apply to evidence adduced in accordance
with a direction under this section.
Clause 50 Proof of voluminous or complex documents
A party may adduce evidence of documents in the form of a summary if the
court considers it is not convenient to examine the evidence otherwise
because of the complexity or volume of the documents.
The court may only make such a direction if the applicant has served on each
other party a copy of the summary disclosing the name and address of the
person who prepared it, and has given each other party a reasonable
opportunity to examine or copy the summarised documents.
Clause 51 Original document rule abolished
The principles and rules of the common law that relate to the means of
proving the contents of documents are abolished.
Note for section 51
Section 182 of the Commonwealth Act gives the provisions of Part 2.2 of
the Commonwealth Act a wider application in relation to Commonwealth
records and certain Commonwealth documents.
Clause 51 Original document rule abolished
This clause abolishes the original document rule, which provided that the
contents of a document, except in certain limited circumstances, must be
proved by production of the original document.
Part 2.3
Other evidence
Views, exhibits, demeanour of witnesses, demonstrations and experiments (or
‘real evidence’) are covered in Part 2.3. Views and demonstrations are not to
be held without parties and their counsel having the opportunity to attend and
51
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
the judge (and jury) being present. A view or demonstration may however still
occur in the absence of a party (clause 53(3)).
The High Court has held that the common law still applies to demonstrations
etc held inside the courtroom and Part 2.3 applies to demonstrations, views
etc. held outside. Relevance and fairness requirements must, of course, be
met and prejudicial demonstrations must not occur. The jury must not
conduct an experiment in the course of its deliberations.
Clause 52 Adducing of other evidence not affected
This Act (other than this Part) does not affect the operation of any
Australian law or rule of practice so far as it permits evidence to be
adduced in a way other than by witnesses giving evidence or documents
being tendered in evidence.
Clause 52 Adducing of other evidence not affected
This clause provides that the Bill (except Part 2.3) will not affect an Australian
law or rule of practice so far as it permits evidence to be adduced in a way
other than by witnesses giving evidence or documents being tendered in
evidence.
Other evidence from witnesses giving evidence or documents being tendered,
is information that is perceived directly by the court.
Clause 53 Views
(1)
A judge may, on application, order that a demonstration, experiment
or inspection be held.
(2)
A judge is not to make an order unless he or she is satisfied that:
(3)
(a)
the parties will be given a reasonable opportunity to be
present; and
(b)
the judge and, if there is a jury, the jury will be present.
Without limiting the matters that the judge may take into account in
deciding whether to make an order, the judge is to take into account
the following:
(a)
whether the parties will be present;
(b)
whether the demonstration, experiment or inspection will, in
the court's opinion, assist the court in resolving issues of fact
or understanding the evidence;
52
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(c)
the danger that the demonstration, experiment or inspection
might be unfairly prejudicial, might be misleading or confusing
or might cause or result in undue waste of time;
(d)
in the case of a demonstration – the extent to which the
demonstration will properly reproduce the conduct or event to
be demonstrated;
(e)
in the case of an inspection – the extent to which the place or
thing to be inspected has materially altered.
(4)
The court (including, if there is a jury, the jury) is not to conduct an
experiment in the course of its deliberations.
(5)
This section does not apply in relation to the inspection of an exhibit
by the court or, if there is a jury, by the jury.
Clause 53 Views
A judge, on application, may order that a demonstration, experiment or
inspection be held. This clause sets out some of the matters the judge must
take into account in deciding whether to make such an order. These include
whether the parties will be present and whether a demonstration of an event
will properly reproduce the event
Clause 54 Views to be evidence
The court (including, if there is a jury, the jury) may draw any reasonable
inference from what it sees, hears or otherwise notices during a
demonstration, experiment or inspection.
Clause 54 Views to be evidence.
The common law fiction that a view is not evidence has been abandoned.
This clause makes it clear that the court (including the jury if there is one) may
draw any reasonable inference from what it sees, hears or otherwise notices
at a demonstration, experiment or inspection.
Chapter 3
Admissibility of evidence
Introductory Note
Outline of this Chapter
This Chapter is about whether evidence adduced in a proceeding is
admissible.
53
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Part 3.1 sets out the general inclusionary rule that relevant evidence is
admissible.
Part 3.2 is about the exclusion of hearsay evidence, and exceptions to the
hearsay rule.
Part 3.3 is about exclusion of opinion evidence, and exceptions to the opinion
rule.
Part 3.4 is about admissions and the extent to which they are admissible as
exceptions to the hearsay rule and the opinion rule.
Part 3.5 is about exclusion of certain evidence of judgments and convictions.
Part 3.6 is about exclusion of evidence of tendency or coincidence, and
exceptions to the tendency rule and the coincidence rule.
Part 3.7 is about exclusion of evidence relevant only to credibility, and
exceptions to the credibility rule.
Part 3.8 is about character evidence and the extent to which it is admissible
as exceptions to the hearsay rule, the opinion rule, the tendency rule and the
credibility rule.
Part 3.9 is about the requirements that must be satisfied before identification
evidence is admissible.
Part 3.10 is about the various categories of privilege that may prevent
evidence being adduced.
Part 3.11 provides for the discretionary and mandatory exclusion of evidence
even if it would otherwise be admissible.
54
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
The following diagram shows how this Chapter applies to particular evidence:
Is the evidence relevant? (See Part 3.1.)
No
Yes
Does the hearsay rule apply? (See Part 3.2.
See also Part 3.4 on admissions and
Part 3.8 on character evidence)
Yes
No
Does the opinion rule apply? (See Part 3.3.
See also Part 3.4 on admissions and
Part 3.8 on character evidence.)
Yes
No
Does the evidence contravene the rule
about evidence of judgments and
convictions? (See Part 3.5.)
Yes
No
Does the tendency rule or the coincidence
rule apply? (See Part 3.6. See also Part 3.8
on character evidence.)
Yes
THE
EVIDENCE IS
NOT
ADMISSIBLE
No
Does the credibility rule apply? (See Part
3.7. See also Part 3.8 on character
evidence.)
Yes
No
Does the evidence contravene the rules
about identification evidence? (See Part 3.9)
Yes
No
Does a privilege apply? (See Part 3.10.)
Yes
No
Should a discretion to exclude the
evidence be exercised or must it be
excluded? (See Part 3.11.)
Yes
No
THE EVIDENCE IS ADMISSIBLE
55
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
CHAPTER 3 ADMISSIBILITY OF EVIDENCE
Part 3.1 sets out the general inclusionary rule that relevant evidence is
admissible.
Part 3.2 is about exclusion of hearsay evidence, and exceptions to the
hearsay rule.
Part 3.3 is about exclusion of opinion evidence, and exceptions to the opinion
rule.
Part 3.4 is about admissions and the extent to which they are admissible as
exceptions to the hearsay rule and the opinion rule.
Part 3.5 is about exclusion of certain evidence of judgments and convictions.
Part 3.6 is about exclusion of evidence of tendency or coincidence, and
exceptions to the tendency rule and the coincidence rule.
Part 3.7 is about exclusion of evidence relevant only to credibility, and
exceptions to the credibility rule.
Part 3.8 is about character evidence and the extent to which it is admissible
as an exception to the hearsay rule, the opinion rule, the tendency rule and
the credibility rule.
Part 3.9 is about the requirements that must be satisfied before identification
evidence is admissible.
Part 3.10 is about the various categories of privilege that may prevent
evidence being adduced.
Part 3.11 sets out the discretionary and mandatory exclusions that may apply
to evidence even if it would otherwise be admissible.
A diagram or flow chart at the start of this chapter explains how Chapter 3
determines whether evidence is to be admitted.
First the evidence must be relevant. Then a series of questions are asked of
the evidence, and if the answer to any is ‘yes’ then the evidence is not
admissible.
(1)
Does the hearsay rule apply?
(2)
Does the opinion rule apply?
(3)
Does the evidence contravene the rule about evidence of judgements
and convictions?
(4)
Does the tendency rule or the coincidence rule apply?
(5)
Does the credibility rule apply?
56
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(6)
Does the evidence contravene the rules about identification evidence?
(7)
Does a privilege apply?
(8)
Should a discretion to exclude the evidence be exercised or must it be
excluded?
Part 3.1
Relevance
Clause 55 Relevant evidence
(1)
The evidence that is relevant in a proceeding is evidence that, if it
were accepted, could rationally affect (directly or indirectly) the
assessment of the probability of the existence of a fact in issue in
the proceeding.
(2)
In particular, evidence is not taken to be irrelevant only because it
relates only to:
(a)
the credibility of a witness; or
(b)
the admissibility of other evidence; or
(c)
a failure to adduce evidence.
Clause 55 Relevant evidence
Evidence is relevant if it could rationally affect (whether directly or indirectly)
the assessment of the probability of the existence of a fact in issue.
Clause 56 Relevant evidence to be admissible
(1)
Except as otherwise provided by this Act, evidence that is relevant
in a proceeding is admissible in the proceeding.
(2)
Evidence that is not relevant in the proceeding is not admissible.
Clause 56 Relevant evidence to be admissible
If evidence is relevant it is admissible, ‘except as otherwise provided by this
Act’. If evidence is not relevant it is not admissible.
Relevant evidence is defined as that which ‘could rationally affect (directly or
indirectly) the assessment of the probability of the existence of a fact in issue
in the proceeding’. This is a very wide definition, but a wide definition is
necessary given that clause 56 provides that evidence that is not relevant is
not admissible. Thus, for evidence to be relevant it does not need to render a
fact in issue probable, it just needs to render the fact more probable or less
probable than it would have been without the evidence. There must,
57
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
however, be a rational connection between the fact in issue and the evidence,
(the ‘fact in issue’ being the ultimate ‘fact in issue’), but the relevance may
only be indirect, and affect the probability of the issue only minimally.
The fact that the ‘only’ relevance of a piece of evidence is to do with a
witness’s credibility, or the admissibility of other evidence, or a failure to
adduce evidence, does not make it irrelevant (and therefore inadmissible).
The evidence must nevertheless still be relevant, even if only indirectly.
There has been much discussion on the phrase ‘if accepted’ when deciding
the relevance of evidence. The court assesses the ‘probability of the
existence of a fact in issue’ on the assumption that the evidence is reliable.
This has particular importance in evidence of ‘complaint’ in rape cases, or out
of court statements that may or may not be self serving, or otherwise
potentially unreliable.
Opinion evidence also has to pass the test of relevance. For an opinion to be
relevant the basis for the opinion must be disclosed. For expert evidence the
validity of the ‘scientific knowledge’ must be demonstrated for the evidence to
be relevant.
Circumstantial evidence is indirect evidence tending to prove the existence of
a fact that is not a ‘fact in issue’, but from which an inference regarding the
existence of a ‘fact in issue’ can be drawn. The existence of other possible
inferences does not make it irrelevant. Evidence led to show ‘consciousness
of guilt’, post event conduct, or evidence of flight, for example, may be led
even though there may be innocent explanations.
Tendency or propensity evidence has often been held to be relevant.
Relevant evidence may, however, be excluded by an exclusionary rule, the
exercise of judicial discretion (clauses 135 – 137), or a procedural provision in
the Bill.
Clause 57 Provisional relevance
(1)
(2)
If the determination of the question whether evidence adduced by a
party is relevant depends on the court making another finding
(including a finding that the evidence is what the party claims it to
be), the court may find that the evidence is relevant:
(a)
if it is reasonably open to make that finding; or
(b)
subject to further evidence being admitted at a later stage of
the proceeding that will make it reasonably open to make that
finding.
Without limiting subsection (1), if the relevance of evidence of an
act done by a person depends on the court making a finding that
the person and one or more other persons had, or were acting in
58
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
furtherance of, a common purpose (whether to effect an unlawful
conspiracy or otherwise), the court may use the evidence itself in
determining whether the common purpose existed.
Clause 57 Provisional relevance
Evidence may be admitted provisionally even if its relevance is not
immediately apparent. It may be dependant on another fact to be relevant.
This clause allows the court to make a finding of ‘provisional relevance’ where
the party adducing the evidence undertakes to adduce further evidence which
establishes the relevance of the earlier evidence. An example is documentary
evidence where the document must be authenticated later, or where evidence
of one defendant may become relevant against another when evidence of
common purpose is proved. A knife could be accepted as provisionally
relevant, subject to proof that it was used in a murder.
Clause 58 Inferences as to relevance
(1)
If a question arises as to the relevance of a document or thing, the
court may examine it and may draw any reasonable inference from
it, including an inference as to its authenticity or identity.
(2)
Subsection (1) does not limit the matters from which inferences may
properly be drawn.
Clause 58 Inferences as to relevance
A court may examine a document or thing for the purpose of determining its
relevance and to draw any reasonable inference from it, including an
inference as to its authenticity. Authenticity should be distinguished from
relevance however, and this clause does not necessarily mean a document
can authenticate itself.
Part 3.2
Hearsay
This Part begins with the hearsay rule, clause 59, and then provides a series
of exceptions to the rule, clauses 60 to 75.
These provisions make significant changes to the common law which the
ALRC described as overly complex, technical, inflexible, piecemeal, costly
and incoherent, with the added problem of excluding substantially probative
evidence.
The hearsay rule is avoided when evidence of a previous representation is
admitted for another purpose. First hand hearsay is distinguished from more
remote hearsay, and the rules are different between civil and criminal
proceedings.
Division 1
The hearsay rule
59
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 59 The hearsay rule – exclusion of hearsay evidence
(1)
Evidence of a previous representation made by a person is not
admissible to prove the existence of a fact that it can reasonably be
supposed that the person intended to assert by the representation.
(2)
Such a fact is in this Part referred to as an asserted fact.
(2A) For the purposes of determining under subsection (1) whether it can
reasonably be supposed that the person intended to assert a
particular fact by the representation, the court may have regard to
the circumstances in which the representation was made.
Note for subsection (2A)
Subsection (2A) is inserted as a response to the decision of the
Supreme Court of New South Wales in R v Hannes (2000) 158 FLR
359.
(3)
Subsection (1) does not apply to evidence of a representation
contained in a certificate or other document given or made under
regulations made under an Act other than this Act to the extent to
which the regulations provide that the certificate or other document
has evidentiary effect.
Notes for subsection (3)
Specific exceptions to the hearsay rule are as follows:
 evidence relevant for a non-hearsay purpose (section 60)
 first-hand hearsay:
o civil proceedings, if the maker of the representation is
unavailable (section 63) or available (section 64)
o criminal proceedings, if the maker of the representation is
unavailable (section 65) or available (section 66)

contemporaneous statements about a person's health etc.
(section 66A)

business records (section 69)

tags, labels and writing (section 70)

electronic communications (section 71)

Aboriginal and Torres Strait Islander traditional laws and
customs (section 72)
60
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act

marriage, family history or family relationships (section 73)

public or general rights (section 74)

use of evidence in interlocutory proceedings (section 75)

admissions (section 81)

representations about employment or authority (section 87(2))

exceptions to the rule excluding evidence of judgments and
convictions (section 92(3))

character of and expert opinion about accused persons
(sections 110 and 111).
Other provisions of this Act, or of other laws, may operate as further
exceptions.
Examples for section 59
1
D is the defendant in a sexual assault trial. W has made a
statement to the police that X told W that X had seen D leave a
night club with the victim shortly before the sexual assault is
alleged to have occurred. Unless an exception to the hearsay
rule applies, evidence of what X told W cannot be given at the
trial.
2
P had told W that the handbrake on W's car did not work.
Unless an exception to the hearsay rule applies, evidence of
that statement cannot be given by P, W or anyone else to
prove that the handbrake was defective.
3
W had bought a video cassette recorder and written down its
serial number on a document. Unless an exception to the
hearsay rule applies, the document is inadmissible to prove
that a video cassette recorder later found in D's possession
was the video cassette recorder bought by W.
Clause 59 The hearsay rule – exclusion of hearsay evidence
The ‘hearsay rule’ excludes evidence of a ‘previous representation’ if it is
adduced to prove the existence of a fact that it can reasonably be supposed
the person intended to assert by the representation. The ‘representation’
means both statements and conduct, both express and implied, and includes
a representation not intended to be communicated or seen.
When determining whether a person intended to assert the existence of facts
contained in a previous representation, the test to be applied is what a person
in the position of maker of the representation can reasonably be supposed to
61
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
have intended, having regard to the representation and the circumstances in
which the representation was made.
A Note to clause 59 sets out specific exceptions to the hearsay rule. It refers
to the clauses in the Bill that set out when evidence is admissible (even
though it is hearsay evidence).
Examples are given illustrating how the clause is intended to operate.
Clause 60 Exception – evidence relevant for a non-hearsay purpose
(1)
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 an asserted fact.
(2)
This section applies whether or not the person who made the
representation had personal knowledge of the asserted fact (within
the meaning of section 62(2)).
Note for subsection (2)
Subsection (2) is inserted as a response to the decision of the High
Court of Australia in Lee v The Queen (1998) 195 CLR 594.
(3)
However, this section does not apply in a criminal proceeding to
evidence of an admission.
Note for subsection (3)
The admission might still be admissible under section 81 as an
exception to the hearsay rule if it is "first-hand" hearsay – see
section 82.
Clause 60 Exception – evidence relevant for a non-hearsay purpose
Evidence can be adduced for a non-hearsay purpose i.e. it is not introduced
to prove the truth of the fact asserted, but introduced for another purpose (for
example to prove the fact that someone made a statement). The party
wishing to introduce the evidence will have to show the evidence is relevant
and admissible for that other purpose. This is the same as the common law.
Examples of this are evidence of conversations to prove the fact of the
conversation, evidence of threats to prove someone was acting under duress,
and evidence of a representation by a person used to infer the identity of that
person.
With respect to implied assertions, the UEA has moved away from the
common law. A distinction is drawn between intended (express) assertions
and unintended (implied) assertions. Unintended (implied) assertions are
outside the hearsay rule. The test of intent or otherwise is external to the
62
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
maker of the representation. This is an objective test and the intent or state of
mind of the person is inferred from the conduct of the person.
If the person intended to assert the fact then the hearsay rule applies, and if
the intention was not to assert the fact then the rule does not apply.
Under the common law where a previous representation is admitted for a
non-hearsay purpose it can only be used for that purpose and not as evidence
of the facts stated. This is a ‘schizophrenic task’ which the common law
imposed on the tribunal of fact. This task would be harder for lay jurors than
judges.
The UEA however, takes a different approach, and allows the evidence to be
used also as evidence of the facts stated. For example, evidence of a prior
consistent statement is admissible as evidence of the fact stated, as is
evidence of a prior inconsistent statement. This is a major change to the law.
The focus now is on the weight to be accorded the evidence not its
admissibility.
The ALRC said “The intention of s.60 was to enable evidence admitted for a
non-hearsay purpose to be used as evidence of the truth of the facts asserted
in the representation, and to do so whether or not the evidence is first-hand or
more remote hearsay, subject to the controls provided by ss.135-137”.
The Note to subclause (2) explains that this subclause is a response to the
decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR
594. In Lee a witness had made a statement to the effect that the defendant
had rushed up to him and told him he had ‘just done a job’ and fired two
shots. Later in court the witness said he could not recall the defendant having
said that, so the prosecution obtained leave under s38 to cross-examine the
witness about his inconsistent statement to the police, and his written
statement was introduced as evidence relevant to the witness’s credibility.
The issue before the High Court was what use could be made of that prior
inconsistent statement.
The witness’ statement to police was both evidence of what the witness had
seen and heard, and also of representations made by the defendant about
what the defendant had done.
The High Court said that it was only what the witness had said to Police that
was relevant for the non-hearsay purpose of going to the witness’s credibility.
The evidence of what the defendant had said to the witness was not relevant
for the non-hearsay purpose of the witness’s credibility, and so the judge
should have either rejected the confession part of the statement or given
directions that it should not have been used as evidence of its truth. If,
however, the witness had been prepared to give evidence of the confession of
the defendant, the situation would have been different, and it could have been
admitted as evidence of its truth.
63
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Subclause (2) was introduced to ensure that, in general, the provision applies
to second hand or more remote hearsay. Subclause (3) however creates an
exception to this proposition and evidence of admissions in criminal
proceedings that is not first-hand is excluded from the scope of clause 60.
Consequently, Lee’s case if held now, would still have the same result.
The Note to subclause (3) provides that evidence of an admission might still
be admissible under clause 81 of the Bill if it is ‘first hand’ hearsay. The Note
makes a cross reference to clause 82 which deals with the exclusion of
evidence of admissions that is not first hand.
Where it would be unfair to let the representation in as evidence of the truth of
the assertion, due to an inability to cross-examine the maker of the
representation the exclusionary discretion conferred on the court by
clause 136 can be used. In a jury trial the trial judge, if requested, must warn
the jury that the hearsay evidence may be unreliable. (clause 165(2)).
Clause 61 Exceptions to the hearsay rule dependant on competency
(1)
This Part does not enable use of a previous representation to prove
the existence of an asserted fact if, when the representation was
made, the person who made it was not competent to give evidence
about the fact because of section 13(1).
(2)
This section does not apply to a contemporaneous representation
made by a person about his or her health, feelings, sensations,
intention, knowledge or state of mind.
Note for subsection (2)
For the admissibility of such contemporaneous representations, see
section 66A.
(3)
For the purposes of this section, it is presumed, unless the contrary
is proved, that when the representation was made the person who
made it was competent to give evidence about the asserted fact.
Clause 61 Exceptions to the hearsay rule dependant on competency
Nothing in Part 3.2 enables the use of a previous representation to prove an
asserted fact if the representation was made by a person, who at the time it
was made, was not competent to give evidence of the fact. The clause
makes it clear that competence is to be assessed in accordance with the test
in clause 13.
Subclause (2) makes it clear that the limitation in clause 61 does not apply to
a person's contemporaneous representations about the person's health,
feelings, sensations, intentions, knowledge or state of mind.
64
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
The Note to subclause (2) refers to clause 66A for further information
regarding admissibility of such contemporaneous statements.
Division 2
"First-hand" hearsay
The rules against hearsay do not apply in civil proceedings to first-hand
hearsay, in oral or documentary form, if the maker of the previous
representation is unavailable to testify, (clause 63), or if the maker is available
but it would cause undue expense or delay to call the person (clause 64).
Notice must, however, be given (clause 67), and a request can be made to
produce the person (clause 167) although the unavailability of the person is a
‘reasonable cause’ not to produce the person. (clause 169(4)).
In a civil proceeding objections can be made to a proposal not to call an
available witness whose evidence was proposed to be tendered as hearsay
evidence (clause 68). The matter will then be determined by the court.
As one would expect, the situation is different in criminal proceedings
(clause 65).
Clause 62 Restriction to "first-hand" hearsay
(1)
A reference in this Division (other than in subsection (2)) to a
previous representation is a reference to a previous representation
that was made by a person who had personal knowledge of an
asserted fact.
(2)
A person has personal knowledge of the asserted fact if his or her
knowledge of the fact was, or might reasonably be supposed to
have been, based on something that the person saw, heard or
otherwise perceived, other than a previous representation made by
another person about the fact.
(3)
For the purposes of section 66A, a person has personal knowledge
of the asserted fact if it is a fact about the person's health, feelings,
sensations, intention, knowledge or state of mind at the time the
representation referred to in that section was made.
Clause 62 Restriction to “first-hand” hearsay
First-hand hearsay is distinguished by this clause from more remote hearsay.
First-hand hearsay is a previous representation that was made by a person
who had, or might reasonably be supposed to have had, personal knowledge
of an asserted fact. This means the person’s knowledge of the fact was
based on something heard, seen, or otherwise perceived by the person.
Subclause (3) refers to clause 66A, which also contains a reference to
knowledge and ensures that all previous representations covered by
clause 66A are considered ‘first-hand’ hearsay.
65
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 63 Exception – civil proceedings if maker not available
(1)
This section applies in a civil proceeding if a person who made a
previous representation is not available to give evidence about an
asserted fact.
(2)
The hearsay rule does not apply to:
(a)
evidence of the representation that is given by a person who
saw, heard or otherwise perceived the representation being
made; or
(b)
a document so far as it contains the representation, or another
representation to which it is reasonably necessary to refer in
order to understand the representation.
Notes for subsection (2)
1 Section 67 imposes notice requirements relating to this
subsection.
2 Clause 4 of Part 2 of the Dictionary is about the availability of
persons.
Clause 63 Exception – civil proceedings if maker not available
This clause provides an exception to the hearsay rule in civil proceedings
where the maker of a ‘first-hand’ hearsay representation is not available to
give evidence about an asserted fact. In these circumstances, oral evidence
of the representation may be given by a person who witnessed it.
Alternatively, a document containing the representation, or another
representation reasonably necessary to understand it, may be admitted.
The aim of the provision is to allow the best evidence that a party has
available to be led. The Notes to clause 63 explain that clause 67 contains
notice requirements in relation to this clause, and that clause 4 of Part 2 of the
Dictionary is about the availability of persons.
Clause 64 Exception – civil proceedings if maker available
(1)
This section applies in a civil proceeding if a person who made a
previous representation is available to give evidence about an
asserted fact.
(2)
The hearsay rule does not apply to:
(a)
evidence of the representation that is given by a person who
saw, heard or otherwise perceived the representation being
made; or
66
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(b)
a document so far as it contains the representation, or another
representation to which it is reasonably necessary to refer in
order to understand the representation;
if it would cause undue expense or undue delay, or would not be
reasonably practicable, to call the person who made the
representation to give evidence.
Note for subsection (2)
Section 67 imposes notice requirements relating to this subsection.
Section 68 is about objections to notices that relate to this
subsection.
(3)
(4)
If the person who made the representation has been or is to be
called to give evidence, the hearsay rule does not apply to evidence
of the representation that is given by:
(a)
that person; or
(b)
a person who saw, heard or otherwise perceived the
representation being made.
A document containing a representation to which subsection (3)
applies must not be tendered before the conclusion of the
examination in chief of the person who made the representation,
unless the court gives leave.
Note for section 64
Clause 4 of Part 2 of the Dictionary is about the availability of
persons.
Clause 64 Exception – civil proceedings if maker available
Two exceptions to the hearsay rule exist in civil proceedings where the maker
of the specified ‘first-hand’ hearsay representation is available to give
evidence. First, where it would cause undue expense or undue delay or
it would not be reasonably practicable to call the maker of the representation
to give evidence, oral evidence of the representation may be given by a
person who witnessed it.
Secondly, a document containing the
representation, or any other representation reasonably necessary to
understand it, may be admitted.
The clause does not require that the occurrence of the asserted fact be fresh
in the memory of the person who made the representation at the time that the
representation is made. ALRC 102 found that in practice, the requirement of
freshness in memory is not an important indicator of evidentiary reliability
67
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 65 Exception – criminal proceedings if maker not available
(1)
This section applies in a criminal proceeding if a person who made
a previous representation is not available to give evidence about an
asserted fact.
(2)
The hearsay rule does not apply to evidence of a previous
representation that is given by a person who saw, heard or
otherwise perceived the representation being made, if the
representation:
(a)
was made under a duty to make that representation or to make
representations of that kind; or
(b)
was made when or shortly after the asserted fact occurred and
in circumstances that make it unlikely that the representation is
a fabrication; or
(c)
was made in circumstances that make it highly probable that
the representation is reliable; or
(d)
was:
(i)
against the interests of the person who made it at the
time it was made; and
(ii)
made in circumstances that make it likely that the
representation is reliable.
Note for subsection (2)
Section 67 imposes notice requirements relating to this subsection.
(3)
The hearsay rule does not apply to evidence of a previous
representation made in the course of giving evidence in an
Australian or overseas proceeding if, in that proceeding, the
defendant in the proceeding to which this section is being applied:
(a)
cross-examined the person who made the representation
about it; or
(b)
had a reasonable opportunity to cross-examine the person
who made the representation about it.
Note for subsection (3)
Section 67 imposes notice requirements relating to this subsection.
(4)
If there is more than one defendant in the criminal proceeding,
evidence of a previous representation that:
68
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(a)
is given in an Australian or overseas proceeding; and
(b)
is admitted into evidence in the criminal proceeding because of
subsection (3);
cannot be used against a defendant who did not cross-examine,
and did not have a reasonable opportunity to cross-examine, the
person about the representation.
(5)
(6)
(7)
(8)
For the purposes of subsections (3) and (4), a defendant is taken to
have had a reasonable opportunity to cross-examine a person if the
defendant was not present at a time when the cross-examination of
a person might have been conducted but:
(a)
could reasonably have been present at that time; and
(b)
if present could have cross-examined the person.
Evidence of the making of a representation to which subsection (3)
applies may be adduced by producing a transcript, or a recording,
of the representation that is authenticated by:
(a)
the person to whom, or the court or other body to which, the
representation was made; or
(b)
if applicable, the registrar or other proper officer of the court or
other body to which the representation was made; or
(c)
the person or body responsible for producing the transcript or
recording.
Without limiting subsection (2)(d), a representation is taken for the
purposes of that subsection to be against the interests of the person
who made it if it tends:
(a)
to damage the person's reputation; or
(b)
to show that the person has committed an offence for which
the person has not been convicted; or
(c)
to show that the person is liable in an action for damages.
The hearsay rule does not apply to:
(a)
evidence of a previous representation adduced by a defendant
if the evidence is given by a person who saw, heard or
otherwise perceived the representation being made; or
(b)
a document tendered as evidence by a defendant so far as it
contains a previous representation, or another representation
69
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
to which it is reasonably necessary to refer in order to
understand the representation.
Note for subsection (8)
Section 67 imposes notice requirements relating to this subsection.
(9)
If evidence of a previous representation about a matter has been
adduced by a defendant and has been admitted, the hearsay rule
does not apply to evidence of another representation about the
matter that:
(a)
is adduced by another party; and
(b)
is given by a person who saw, heard or otherwise perceived
the other representation being made.
Note for section 65
Clause 4 of Part 2 of the Dictionary is about the availability of
persons.
Clause 65 Exception – criminal proceedings if maker not available
In criminal proceedings the rules are different from, but still more flexible than,
the common law. Clause 65 allows first-hand hearsay in a number of
specified situations in criminal proceedings. First-hand hearsay is not
excluded if the representation was made;
(a)
by someone under a duty to make the representation (cl.65(2)(a));
(b)
when or shortly after the asserted fact occurred and in circumstances
that make it unlikely the representation is a fabrication (cl.65(2)(b));
(c)
in circumstances making it highly probable that the representation is
reliable (cl.65(2)c)); or
(d)
against the interests of the person making the representation, and in
circumstances making it likely the representation was reliable
(cl.65(2)(d)).
The defendant, when calling first-hand hearsay in oral or documentary form,
does not have to satisfy the requirements that the prosecution must satisfy
(cl.65(8)). This enables the exonerating statements of alleged victims,
confessions of third parties and statements of deceased persons to be
admitted in evidence. Another party can adduce hearsay qualifying or
explaining hearsay introduced by the defendant (cl.65(9)). This means the
Crown can respond and not be limited by the preconditions that govern the
leading of first-hand hearsay as part of the Crown case in chief.
A person is taken to be available to give evidence if that person does not fall
70
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
within the categories listed in Clause 4 of Pt 2 of the Dictionary. The
categories include the person being dead or not competent, that it would be
unlawful to give the evidence, or all reasonable steps have been taken to find
the person and to secure or compel the person’s attendance without success.
The phrase ‘shortly after’ in clause 65(2)(b) is intended to allow evidence that
is unlikely to be fabricated. It is not emphasising whether the events were
fresh in the memory or easily recalled, rather it is principally concerned to
exclude ‘concocted evidence’. The Full Federal Court in Williams v R (2000)
119 A Crim R 490 held a condition of admissibility was that the statement be
made spontaneously during (when) or under the proximate pressure of
(‘shortly after’) the occurrence of the asserted fact. A lapse of five days was
held outside the exception. The provision has, however, been held to allow
for a written statement by an injured victim made to police the next day.
Clause 65(2)(c) ‘made in circumstances that make it highly probable that the
representation is reliable’ seems to adopt the view of Mason CJ in
Walton v The Queen (1989) 166 CLR 283. The United States Federal Rules
of Evidence also include an exception to the hearsay rule based on
‘circumstantial guarantees of trustworthiness’.
The maker of the
representation must be unavailable and the circumstances must be such as to
‘make it highly probable that the representation is reliable’. It is the probability
of the reliability of the narration itself which counts and the Full Federal Court
held the requirement for admissibility should be strictly interpreted; Conway v
The Queen (2000) 98 FCR 204.
Subclause (2)(d) is in accordance with the 2005 ALRC Report finding that
admissions against interest cannot automatically be assumed to be reliable.
For example, where the person who made the statement is an accomplice or
co-accused, he or she may be motivated to downplay the extent of his or her
involvement in relevant events and to emphasise the culpability of the other.
There might be reason to suspect that an accomplice or co-accused would be
more inclined to take such a course where, for example, they have immunity
from prosecution. Where the accomplice gains immunity from prosecution,
the fact that the representation is against self-interest is no longer a reliable
safeguard or indicator of reliability.
Accordingly, this subclause contains a requirement that for such admissions
to be admitted, they must also be found ‘to be likely to be reliable’. The
provision is not restricted to accomplices and co-accused, as statements
against interest may arise in other situations.
Subclause (3) contains an exception which enables evidence to be given of a
representation made in the course of giving evidence in an Australian or
overseas proceeding if, in that proceeding, the defendant affected has crossexamined, or had a reasonable opportunity to cross-examine, the person who
made the representation. An example of this is where a person has given
evidence in a committal, has subsequently died, and the transcript may be
tendered at trial.
71
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Subclause (4) sets out that where such evidence is admitted in a criminal
proceeding involving more than one defendant, it cannot be used against a
defendant who did not, or did not have reasonable opportunity to, crossexamine the person about the representation.
Subclause (6) provides that evidence of such a representation may be
adduced by producing a transcript or recording that is authenticated in a
specified way.
Subclause (7) provides that a representation is to be taken to be against the
maker's interest if it tends to damage the reputation of the maker, incriminate
the maker or show that the maker is liable in an action for damages.
Subclauses (8) and (9) apply to evidence adduced by a defendant. Subclause
(8) provides an exception that enables a defendant to adduce evidence of a
representation from a person who witnessed it or to tender a document
containing the representation, or another representation reasonably
necessary to understand it.
Subclause (9) provides that if evidence of that kind (pursuant to subclause
(8)) has been adduced by a defendant about a particular matter, the
prosecution or another defendant may adduce evidence of another previous
representation about the matter. The ALRC comments that ‘matter’ should be
broadly constructed and if unfairness results then the mandatory and
discretionary exclusions can be used. Narrowing the interpretations of any of
the hearsay exceptions carries the danger of introducing technicalities,
something the Uniform Evidence Acts are intended to remove and avoid
Clause 66 Exception – criminal proceedings if maker available
(1)
This section applies in a criminal proceeding if a person who made
a previous representation is available to give evidence about an
asserted fact.
(2)
If that person has been or is to be called to give evidence, the
hearsay rule does not apply to evidence of the representation that
is given by:
(a)
that person; or
(b)
a person who saw, heard or otherwise perceived the
representation being made;
if, when the representation was made, the occurrence of the
asserted fact was fresh in the memory of the person who made the
representation.
72
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(2A) In determining whether the occurrence of the asserted fact was
fresh in the memory of a person, the court may take into account all
matters that it considers are relevant to the question, including:
(a)
the nature of the event concerned; and
(b)
the age and health of the person; and
(c)
the period of time between the occurrence of the asserted fact
and the making of the representation.
Note for subsection (2A)
Subsection (2A) is inserted as a response to the decision of the
High Court of Australia in Graham v The Queen (1998) 195 CLR
606.
(3)
If a representation was made for the purpose of indicating the
evidence that the person who made it would be able to give in an
Australian or overseas proceeding, subsection (2) does not apply to
evidence adduced by the prosecutor of the representation unless
the representation concerns the identity of a person, place or thing.
(4)
A document containing a representation to which subsection (2)
applies must not be tendered before the conclusion of the
examination in chief of the person who made the representation,
unless the court gives leave.
Note for section 66
Clause 4 of Part 2 of the Dictionary is about the availability of
persons.
Clause 66 Exception – criminal proceedings if maker available
Where, in criminal proceedings, the maker of the representation is available,
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 represented fact was ‘fresh in the memory’ of the maker (clause
66(2)).
This applies to ‘complaint’ evidence in criminal proceedings. The evidence
can be admitted to prove the truth of the facts alleged in the complaint. This
is different from the way complaint evidence is used in the common law.
Section 26E of the NT Evidence Act, ‘Exception to rule against hearsay
evidence’, however, provides that in a proceeding arising from a charge of a
sexual offence or a serious violence offence, the evidence of a statement
made by a child to another person to be admitted as evidence of the facts in
issue. This is both broader and narrower than the UEA provision. It is
narrower in that it applies only to sexual offences or serious violence offences,
and then only to the evidence of children, whereas the UEA applies across
73
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
the board, and it is broader in that it does not carry the requirement of being
‘fresh in the memory’ of the child. Under the NT Evidence Act the evidence
can be admitted as evidence of facts in issue, but not as corroboration,
whereas the UEA allows the evidence to go towards the truth of the facts
alleged in the complaint, as well as supporting the credibility of the
complainant.
The substance of the recently enacted NT procedural reforms concerning
evidence in sexual offence matters, including s 26E, will remain in a separate
Act.
The words ‘fresh in the memory’ have proved contentious, and in response to
the decision in Graham v The Queen (1998) 195 CLR 606, which determined
‘fresh’ to mean ‘recent’ or ‘immediate’, the UEA has been amended to
introduce clause 66(2A) which indicates the matters to be taken into account
when deciding if an event was ‘fresh in the memory’. These matters are the
nature of the event, the person’s age and health, and the period of elapsed
time between the event and the representation. Thus the court is not to focus
primarily on the lapse of time between the event and the representation.
Demonstrating this, it has been variously held that 66 days is too long, not too
long, and that a course of conduct over a period of six months is still
admissible.
Subclause (3) provides that if a representation was made for the purpose of
indicating the evidence that the maker would be able to give in a proceeding,
the exception to the hearsay rule is not to apply to evidence adduced by the
prosecutor unless the representation concerns the identity of a person, place
or thing.
Subclause (4) provides that a document containing a representation (pursuant
to subclause (2)) must not be tendered before the conclusion of the
examination in chief of the person who made the representation, unless the
court gives leave.
The clause has also been used to adduce evidence from an observer of an
out of court identification.
Clause 66A Exception – contemporaneous statements about a person's
health etc.
The hearsay rule does not apply to evidence of a previous representation
made by a person if the representation was a contemporaneous
representation about the person's health, feelings, sensations, intention,
knowledge or state of mind.
Clause 66A Exception – contemporaneous statements about a person’s
health
Evidence can be given of a person’s previous representations about their
74
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
health, feelings, sensations, intention, knowledge or state of mind. The
clause is limited to first-hand hearsay and enables the court to assess the
reliability of the person who had personal knowledge of the asserted fact.
This allows, for example, evidence to be received from people who have
conducted surveys of the responses they have received.
Clause 67 Notice to be given
(1)
Sections 63(2), 64(2) and 65(2), (3) and (8) do not apply to
evidence adduced by a party unless that party has given
reasonable notice in writing to each other party of the party's
intention to adduce the evidence.
(2)
Notices given under subsection (1) are to be given in accordance
with any regulations or rules of court made for the purposes of this
section.
(3)
The notice must state:
(a)
the particular provisions of this Division on which the party
intends to rely in arguing that the hearsay rule does not apply
to the evidence; and
(b)
if section 64(2) is such a provision – the grounds, specified in
that provision, on which the party intends to rely.
(4)
Despite subsection (1), if notice has not been given, the court may,
on the application of a party, direct that one or more of those
subsections is to apply despite the party's failure to give notice.
(5)
The direction:
(a)
is subject to such conditions (if any) as the court thinks fit; and
(b)
in particular, may provide that, in relation to specified
evidence, the subsection or subsections concerned apply with
such modifications as the court specifies.
Clause 67 Notice to be given
This sets out the notice requirements for a party seeking to adduce hearsay
evidence in accordance with Part 3.2.
Clause 68 Objections to tender of hearsay evidence in civil proceedings
if maker available
(1)
In a civil proceeding, if the notice discloses that it is not intended to
call the person who made the previous representation concerned
75
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
because it:
(a)
would cause undue expense or undue delay; or
(b)
would not be reasonably practicable;
a party may, not later than 21 days after notice has been given,
object to the tender of the evidence, or of a specified part of the
evidence.
(2)
The objection is to be made by giving to each other party a written
notice setting out the grounds on which the objection is made.
(3)
The court may, on the application of a party, determine the
objection at or before the hearing.
(4)
If the objection is unreasonable, the court may order that, in any
event, the party objecting is to bear the costs incurred by another
party:
(a)
in relation to the objection; and
(b)
in calling the person who made the representation to give
evidence.
Note for subsection (4)
This subsection differs from section 68(4) of the Commonwealth Act
because of the different way costs are ascertained by Territory
courts.
Clause 68 Objections to tender of hearsay evidence in civil proceedings
if maker available
A party in civil proceedings may object to the tender of hearsay evidence
where the maker of the representation is available, but has not been called to
give evidence. Objections must be made in accordance with the stipulated
notice and other requirements. If the objection is unreasonable the court may
order that the party pay the costs incurred in relation to the objection and in
calling the maker to give evidence.
The Note to clause 68 sets out a difference between this Bill and the
Commonwealth Act due to the different way Territory courts ascertain costs.
Division 3
Other exceptions to the hearsay rule
Clause 69 Exception – business records
(1)
This section applies to a document that:
76
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(a)
(b)
(2)
(3)
(4)
either:
(i)
is or forms part of the records belonging to or kept by a
person, body or organisation in the course of, or for the
purposes of, a business; or
(ii)
at any time was or formed part of such a record; and
contains a previous representation made or recorded in the
document in the course of, or for the purposes of, the
business.
The hearsay rule does not apply to the document (so far as it
contains the representation) if the representation was made:
(a)
by a person who had or might reasonably be supposed to
have had personal knowledge of the asserted fact; or
(b)
on the basis of information directly or indirectly supplied by a
person who had or might reasonably be supposed to have
had personal knowledge of the asserted fact.
Subsection (2) does not apply if the representation:
(a)
was prepared or obtained for the purpose of conducting, or for
or in contemplation of or in connection with, an Australian or
overseas proceeding; or
(b)
was made in connection with an investigation relating or
leading to a criminal proceeding.
If:
(a)
the occurrence of an event of a particular kind is in question;
and
(b)
in the course of a business, a system has been followed of
making and keeping a record of the occurrence of all events of
that kind;
the hearsay rule does not apply to evidence that tends to prove that
there is no record kept, in accordance with that system, of the
occurrence of the event.
(5)
For the purposes of this section, a person is taken to have had
personal knowledge of a fact if the person's knowledge of the fact
was or might reasonably be supposed to have been based on what
the person saw, heard or otherwise perceived (other than a
previous representation made by a person about the fact).
77
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Notes for section 69
1
Sections 48, 49, 50, 146, 147 and 150(1) are relevant to the
mode of proof, and authentication, of business records.
2
Section 182 of the Commonwealth Act gives section 69 of the
Commonwealth Act a wider application in relation to
Commonwealth records.
Clause 69 Exception – business records
Business records are another exception to the rule against hearsay. This
includes computer records, with a rationale that they are generally reliable as
they must be reliable to be of use to the business. The exception will apply
only if the representation was made or recorded in the course of, or for the
purposes of, a business and was made by a person who had, or might
reasonably be supposed to have had, personal knowledge of the fact
asserted by the representation, or was made on the basis of information
supplied (directly or indirectly) by a person who might reasonably be
supposed to have or have had such knowledge.
This exception does not, however, apply to material ‘in contemplation of
proceedings’ prepared or adjusted to meet the requirements of litigation, or
made in the course of investigation of criminal proceedings. In these
situations clause 69(3) guards against a ‘risk of mischief’ arising. The
purpose of this exception to the business records exception is to exclude
representations made in business records which might have a self serving
motivation which could undermine their reliability.
A further exception to the hearsay rule is provided for evidence that tends to
prove that there is no record in a business record keeping system of the
happening of an event normally recorded in the system, (cl.69(4)(b)).
Clause 70 Exception – contents of tags, labels and writing
The hearsay rule does not apply to a tag or label attached to, or writing
placed on, an object (including a document) if the tag or label or writing
may reasonably be supposed to have been so attached or placed:
(a)
in the course of a business; and
(b)
for the purpose of describing or stating the identity, nature,
ownership, destination, origin or weight of the object, or of the
contents (if any) of the object.
Note for section 70
The Commonwealth Act has an additional subsection. It provides that the
exception does not apply to Customs and Excise prosecutions. Section
5 of the Commonwealth Act extends the application of that subsection to
proceedings in all Australian courts.
78
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 70 Exceptions – contents of tags, labels and writing
In certain circumstance an exception to the hearsay rule is the ‘contents of
tags, labels and writing’ attached to objects or documents. This applies to the
attached label’s description of the identity, nature, ownership, destination,
origin, weight, or the contents of the object.
The Commonwealth has the very understandable exception to the exception
in Customs and Excise prosecutions.
Clause 71 Exception – electronic communications
The hearsay rule does not apply to a representation contained in a
document recording an electronic communication so far as the
representation is a representation as to:
(a)
the identity of the person from whom or on whose behalf the
communication was sent; or
(b)
the date on which or the time at which the communication was sent;
or
(c)
the destination of the communication or the identity of the person to
whom the communication was addressed.
Notes for section 71
1
Part 4.3, Division 3 contains presumptions about electronic
communications.
2
Section 182 of the Commonwealth Act gives section 71 of the
Commonwealth Act a wider application in relation to
Commonwealth records.
3
Electronic communication is defined in the Dictionary.
Clause 71 Electronic Communications
The hearsay rule does not apply to electronic representations of identity of the
sender, the date and time it was sent or the destination of the communication
in documents recording an electronic communication. The term ‘electronic
communication’ is not device-specific or method-specific and includes all
electronic technologies, old and new. It is intended to be sufficiently broad to
capture future technologies.
Presumptions about electronic communications are contained in clauses 161
and 162.
79
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 72 Exception – Aboriginal and Torres Strait Islander traditional
laws and customs
The hearsay rule does not apply to evidence of a representation about
the existence or non-existence, or the content, of the traditional laws and
customs of an Aboriginal or Torres Strait Islander group.
Note for section 72
Section 72 formerly provided an exception for contemporaneous
statements about a person's health etc. Such provision can now be
found in section 66A.
Clause 72 Aboriginal and Torres Strait Islander traditional laws and
customs
This clause provides an exception to the hearsay rule for evidence of a
representation about the existence or non-existence, or the content, of the
traditional laws and customs of an Aboriginal or Torres Strait Islander group.
This exception is in accordance with the recommendations in ALRC 102. It
found that the UEA should be amended to make the hearsay rule more
responsive to Aboriginal and Torres Strait Islander oral tradition.
The laws of evidence have treated information passed on orally as a second
class form of knowledge. In Australian Indigenous societies, the value given
to information about traditional law and custom passed on via oral tradition is
determined by considering factors such as the actual transmission, the source
of the information, and the person to whom it has been passed. This clause
does not treat orally transmitted evidence of traditional law and custom as
prima facie inadmissible, as this is the form by which law and custom are
maintained under Indigenous traditions.
The intention of this clause is to make it easier for evidence of traditional law
and customs to be adduced where relevant and appropriate. The exception
shifts the focus away from whether there is a technical breach of the hearsay
rule, to whether the particular evidence is reliable. Factors relevant to
reliability or weight will include the source of the representation, the persons
to whom it has been transmitted, and the circumstances in which it was
transmitted.
The requirements of relevance in clauses 55 and 56 may operate to exclude
representations which do not have sufficient indications of reliability. By using
judicial powers to control proceedings, and create a culturally appropriate
context for the giving of evidence regarding the existence or content of
particular traditional laws and customs, the reliability of the evidence can be
enhanced.
This exception is important for Native Title proceedings, criminal law
defences, sentencing, coronial matters, succession, and family law. It is also
important in Aboriginal heritage proceedings such as sacred site matters. The
80
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
focus is now on the reliability of the evidence not on its hearsay
characteristics. ‘Traditional laws and customs’ is defined in the Dictionary.
In the Northern Territory, however, s 204A of the Sentencing Act and ss 90
and 91 of the Northern Territory National Emergency Response Act 2007
(NTNER Act) still govern the admissibility of evidence of customary law in
criminal proceedings. Sections 90 and 91 of the NTNER Act provide for
matters a court may have regard to when passing sentence or considering
bail. The court must not take into account any form of customary law or
practice as a reason for either lessening the seriousness of criminal
behaviour, or aggravating the seriousness of criminal behaviour. The
Sentencing Act s 104A provides for relevant information on customary law,
and community views about the offender or offence, to be received by the
court, but only from a party to the proceedings and only for the purpose of
imposing ‘a proper sentence’ or restitution, and then only with notice to the
other party, with the evidence on oath, an affidavit or statutory declaration.
Clause 73 Exception – reputation as to relationships and age
(1)
(2)
(3)
The hearsay rule does not apply to evidence of reputation
concerning:
(a)
whether a person was, at a particular time or at any time, a
married person; or
(b)
whether a man and a woman cohabiting at a particular time
were married to each other at that time; or
(c)
a person's age; or
(d)
family history or a family relationship.
In a criminal proceeding, subsection (1) does not apply to evidence
adduced by a defendant unless:
(a)
it tends to contradict evidence of a kind referred to in
subsection (1) that has been admitted; or
(b)
the defendant has given reasonable notice in writing to each
other party of the defendant's intention to adduce the
evidence.
In a criminal proceeding, subsection (1) does not apply to evidence
adduced by the prosecutor unless it tends to contradict evidence of
a kind referred to in subsection (1) that has been admitted.
Clause 73 Exception - reputation as to relationship and age
This exception to the hearsay rule includes evidence about marriage,
cohabitation, age, family history or a family relationship, but not family gossip.
81
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
The provision is intended to reflect and rationalise existing common law rules
in this respect. The clause provides that this exception does not apply to
evidence adduced in a criminal proceeding unless it tends to contradict such
evidence that has been admitted and, in the case of the defendant,
reasonable notice has been given by the defendant.
The provision has been used in Native Title claims, but ‘family history’ has
been held not to include ‘detailed real estate transactions’.
Clause 74 Exception – reputation of public or general rights
(1)
The hearsay rule does not apply to evidence of reputation
concerning the existence, nature or extent of a public or general
right.
(2)
In a criminal proceeding, subsection (1) does not apply to evidence
adduced by the prosecutor unless it tends to contradict evidence of
a kind referred to in subsection (1) that has been admitted.
Clause 74 Exception - Reputation of public or general rights
This exception to the hearsay rule is based on the common law exception, as
to public or general rights. It has been used in Native Title claims. The
exception does not apply in criminal proceedings to evidence adduced by a
prosecutor unless it tends to contradict such evidence that has been admitted.
It cannot, for example, be used in criminal prosecutions because the
existence of a public or general right may be a key issue, for example whether
a road is a public road.
Clause 75 Exception – interlocutory proceedings
In an interlocutory proceeding, the hearsay rule does not apply to
evidence if the party who adduces it also adduces evidence of its source.
Clause 75 Exception - Interlocutory proceedings
The hearsay rule does not apply to interlocutory proceedings provided
evidence is given as to its source. This must be enough to allow proper
investigation by another party or the court to assess its reliability. This
exception applies to first-hand and also more remote hearsay. Care must be
taken with the meaning of ‘interlocutory’ as ‘relaxation of the hearsay rule may
substantially affect the outcome of the proceedings or the way in which they
are conducted.’
A voir dire has been held not to be an interlocutory order, and a ‘restraining
order’ under the Proceeds of Crime Act 1991 (ACT) has been held to be an
interlocutory order.
82
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Governing all of the admissibility of hearsay evidence are of course the
exclusionary provisions of clauses 135-137.
Part 3.3
Opinion
The opinion rule excludes evidence of an opinion which is sought to be used
‘to prove the existence of a fact about the existence of which the opinion was
expressed’.
The main exceptions to the opinion rule are specialised knowledge (cl.79) and
non-expert opinions which are based on what a witness saw, heard or
otherwise perceived. (cl.78)
The difference between evidence of fact and evidence of opinion is often hard
to define. Recognition from photographs can be easily classed as either. For
example a man identifying his wife of thirty years from a photograph would be
probably regarded as evidence of fact, whereas the same man identifying
someone in a police line-up would be more likely to be seen as giving opinion
evidence.
Evidence of ‘experience’ and evidence of ‘opinion’ can also usefully be
distinguished. For example someone with experience of how a particular
vehicle behaves under certain conditions may give relevant evidence of that
experience, which then becomes evidence of fact rather than opinion. The
evidence will not become opinion evidence until the witness draws inferences
from that experience. Where the witness does draw an inference and thus
express an opinion, issues will arise as to the witnesses expertise based on
experience (see clause 79).
Clause 76 The opinion rule
(1)
Evidence of an opinion is not admissible to prove the existence of a
fact about the existence of which the opinion was expressed.
(2)
Subsection (1) does not apply to evidence of an opinion contained
in a certificate or other document given or made under regulations
made under an Act other than this Act to the extent to which the
regulations provide that the certificate or other document has
evidentiary effect.
Notes for section 0
Specific exceptions to the opinion rule are as follows:
 summaries of voluminous or complex documents (section 50(3))
 evidence relevant otherwise than as opinion evidence (section
77)
 lay opinion (section 78)
 Aboriginal and Torres Strait Islander traditional laws and
83
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
customs (section 78A)
 expert opinion (section 79)
 admissions (section 81)
 exceptions to the rule excluding evidence of judgments and
convictions (section 92(3))
 character of and expert opinion about accused persons
(sections 110 and 111).
Other provisions of this Act, or of other laws, may operate as further
exceptions.
Examples for section 76
1
P sues D, her doctor, for the negligent performance of a
surgical operation. Unless an exception to the opinion rule
applies, P's neighbour, W, who had the same operation,
cannot give evidence of his opinion that D had not performed
the operation as well as his own.
2
P considers that electrical work that D, an electrician, has done
for her is unsatisfactory. Unless an exception to the opinion
rule applies, P cannot give evidence of her opinion that D does
not have the necessary skills to do electrical work.
Clause 76 The opinion rule
This clause states the general exclusionary rule that opinion evidence is not
admissible to prove a fact asserted by the opinion (the opinion rule).
The Note to clause 76 sets out a list of the specific exceptions to the opinion
rule as contained in other clauses of the Bill. Examples are set out to
illustrate how the clause is intended to operate.
Clause 77 Exception – evidence relevant otherwise than as opinion
evidence
The opinion rule does not apply to evidence of an opinion that is
admitted because it is relevant for a purpose other than proof of the
existence of a fact about the existence of which the opinion was
expressed.
Clause 77 Exception – evidence relevant otherwise than as opinion
evidence
The opinion rule does not apply to evidence of an opinion that is admitted for
another purpose, and not to prove the existence of the fact about which the
opinion was expressed. If the opinion has been admitted for that other
purpose it may also be used as proof of the fact in respect of which the
opinion was expressed.
84
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
This is a change from the common law and where unfairness ensues, the
discretions in clauses 135 and 136 can be used.
Clause 78 Exception – lay opinions
The opinion rule does not apply to evidence of an opinion expressed by
a person if:
(a)
the opinion is based on what the person saw, heard or otherwise
perceived about a matter or event; and
(b)
evidence of the opinion is necessary to obtain an adequate account
or understanding of the person's perception of the matter or event.
Clause 78 Exception – lay opinions
Lay opinions are allowed where the opinion is based on what the person saw,
heard or otherwise perceived, and the evidence is necessary to adequately
understand the person’s perception of the matter or event. The distinction is
based on the witnesses perception rather than uninformed speculation. The
common law and the UEA both admit lay opinions as to identity, apparent
age, the speed at which something was moving, the weather, and whether
someone was under the influence of liquor. The courts have generally given
this provision a broad application.
Clause 78A Exception – Aboriginal and Torres Strait Islander traditional
laws and customs
The opinion rule does not apply to evidence of an opinion expressed by
a member of an Aboriginal or Torres Strait Islander group about the
existence or non-existence, or the content, of the traditional laws and
customs of the group.
Clause 78A Exception – Aboriginal and Torres Strait Islander traditional
laws and customs
The opinion rule does not apply to evidence of an opinion expressed by a
member of an Aboriginal or Torres Strait Islander group about the existence
or non-existence, or the content of the traditional laws and customs of the
group. In the NT this is of course subject in criminal proceedings to s 104A of
the Evidence Act and ss 90 and 91 of the NTNER Act, which both limit the
extent to which customary law can be used.
This clause is in accordance with ALRC 102, which recommended that a
member of an Aboriginal or Torres Strait Islander group (the group) should not
have to prove that he or she has specialised knowledge based on training,
study or experience before being able to give opinion evidence about the
traditional law and custom of his or her own group.
85
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
People who are not members of the group will have their competence to give
such evidence determined under clause 79, based on their specialised
knowledge based on training, study or experience.
The requirement of relevance in clauses 55 and 56 may operate to exclude
opinions which do not have sufficient indications of reliability, for example
where the person is a member of the group but has had little or no contact
with that group. Reliability can be enhanced through use of judicial powers to
control proceedings, to create a culturally appropriate context for the giving of
evidence regarding the existence or content of particular traditional laws and
customs.
The opinion of an anthropologist about the traditional laws and customs of a
group, but who is not a member of the group would have to be given under
clause 79.
Clause 79 Exception – opinions based on specialised knowledge
(1)
If a person has specialised knowledge based on the person's
training, study or experience, the opinion rule does not apply to
evidence of an opinion of that person that is wholly or substantially
based on that knowledge.
(2)
To avoid doubt, and without limiting subsection (1):
(a)
a reference in that subsection to specialised knowledge
includes a reference to specialised knowledge of child
development and child behaviour (including specialised
knowledge of the impact of sexual abuse on children and their
development and behaviour during and following the abuse);
and
(b)
a reference in that subsection to an opinion of a person
includes, if the person has specialised knowledge of the kind
referred to in paragraph (a), a reference to an opinion relating
to either or both of the following:
(i)
the development and behaviour of children generally;
(ii)
the development and behaviour of children who have
been victims of sexual offences, or offences similar to
sexual offences.
Clause 79 Opinions based on specialised knowledge
If a person has specialised knowledge based on the person’s training, study
or experience, the opinion rule does not apply to an opinion based on that
knowledge. This is the expert evidence rule. The opinion, however, must be
wholly or substantially based on ‘specialised knowledge’, and the expert must
86
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
be proved to have that knowledge. This is an area of evidence law that has
developed considerably over recent years with a large body of case law
generated since the introduction of the UEA.
It must be established on the balance of probabilities:
(1)
that the person has specialised knowledge;
(2)
the specialised knowledge is based on the persons training study or
experience; and
(3)
the opinion is wholly or substantially based on that specialised
knowledge.
Clause 79(2) clarifies the rules relating to specialised evidence of child
development and child behaviour specifically relating to child sex abuse.
ALRC 102 found that specialist knowledge on the development and behaviour
of children can be relevant to a range of matters in legal proceedings,
including testimonial capacity, the credibility of a child witness, the beliefs and
perceptions held by a child, and the reasonableness of those beliefs and
perceptions. Such evidence can, in certain cases such as child sexual
assault matters, be important in assisting the court to assess other evidence
or to address misconceived notions about children and their behaviour.
However, the Report found that courts show a continuing reluctance in many
cases to admit this type of evidence. The inclusion of subclause (2) makes it
clear that this particular type of specialised knowledge is admissible.
The ALRC recognise there are dangers in admitting this category of evidence
but suggests the dangers can be addressed by the application of the
mandatory and discretionary exclusion provisions of Part 3.11.
The law in the NT regarding expert evidence dealing with the evidence of
children as contained in the judgement of Riley J, as he then was, in R v
Joyce (2005) 153 A Crim R 241, where the test was whether the issue is such
that it cannot be properly determined without the assistance of an expert has
now changed. The UEA has the emphasis on letting the evidence of the
specialised knowledge in, provided of course that it fulfils the other criteria of
being wholly or substantially based on that persons training, study or
experience. Upon commencement of the UEA in the NT the law regarding
expert evidence on the development and behaviour of children will change.
‘Specialised knowledge’ is not defined in the Act and is not necessarily
scientific in nature. The ‘specialised knowledge’ may be based on experience
rather than study, or may even be ‘common knowledge’, or may derive from a
combination of training study and experience. It may be based on ‘unrecalled
learning, experience without recollection of particular instances, conversations
with colleagues.’ ‘Ad hoc expertise’ based on particular experience has been
admitted. The ALRC recognised experience can be a sounder base for
opinion than study.
87
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Care must be taken when a new area of expertise is claimed, as occurred in
the NT case of Murdoch v The Queen (2007) NTCCA 1, and in NSW in R v
Tang (2006) 161 A Crim R 377, with a new supposed specialised field of
facial and body mapping. The tests for what is ‘specialised knowledge’ have
varied around ideas of reliability and relevance and are in no respect narrower
or more restrictive than the position at common law.
The ‘basis rule’ under the common law states that evidence of the factual
basis of the proffered expert opinion must be proved. The expert must
disclose the facts upon which the opinion is based and admissible evidence
must prove those facts. In ALRC 26 however, the Commission proposed that
such matters be left to the ‘relevance discretion’.
The Federal Court, the Family Court and the state and territory Supreme
Courts have imposed requirements in regard to expert evidence and reports
by experts, that interact with clause 79.
Clause 80 Ultimate issue and common knowledge rules abolished
Evidence of an opinion is not inadmissible only because it is about:
(a)
a fact in issue or an ultimate issue; or
(b)
a matter of common knowledge.
Clause 80 Ultimate issue and common knowledge rules abolished
The ‘ultimate issue rule’ prevents 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.
The UEA however makes evidence of an opinion not inadmissible only
because it is about a fact in issue or an ultimate issue; or a matter of common
knowledge. This has changed the common law rule and the ‘ultimate issue’
rule and the ‘common knowledge’ rule have been abolished.
Part 3.4
Admissions
Note for Part 3.4
Admission is defined in the Dictionary.
Clause 81 Hearsay and opinion rules – exception for admissions and
related representations
(1)
The hearsay rule and the opinion rule do not apply to evidence of
an admission.
(2)
The hearsay rule and the opinion rule do not apply to evidence of a
88
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
previous representation:
(a)
that was made in relation to an admission at the time the
admission was made, or shortly before or after that time; and
(b)
to which it is reasonably necessary to refer in order to
understand the admission.
Note for section 81
Specific exclusionary rules relating to admissions are as follows:

evidence of admissions that is not first-hand (section 82)

use of admissions against third parties (section 83)

admissions influenced by violence and certain other conduct
(section 84)

unreliable admissions of accused persons (section 85)

records of oral questioning of accused persons (section 860
Example for section 81
D admits to W, his best friend, that he sexually assaulted V. In D's
trial for the sexual assault, the prosecution may lead evidence from
W:
(a)
that D made the admission to W as proof of the truth of that
admission; and
(b)
that W formed the opinion that D was sane when he made
the admission.
Clause 81 Hearsay and opinion rules – exception for admissions and
related representations
Neither the hearsay rule nor the opinion rule are to apply to evidence of an
admission, or of a contemporaneous representation reasonably necessary to
understand the admission.
An admission may be express, or by conduct, or may be adopted. Courts
have taken a broad interpretation of the term ‘admission’, and have held that it
may be implied by flight, attempts to suborn witnesses, or by lying. It must
however be ‘adverse to the person’s interests in the outcome of the
proceeding'.
The Note to clause 81 sets out the specific exclusionary rules relating to
admissions that are contained in other clauses in the Bill.
Clause 82 Exclusion of evidence of admissions that is not first-hand
Section 81 does not prevent the application of the hearsay rule to
89
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
evidence of an admission unless:
(a)
it is given by a person who saw, heard or otherwise perceived the
admission being made; or
(b)
it is a document in which the admission is made.
Note for section 82
Section 60 does not apply in a criminal proceeding to evidence of an
admission.
Clause 82 Exclusion of evidence of admissions that is not first-hand
This clause qualifies the exception created by clause 81. To be admissible,
the hearsay evidence of an admission must be first-hand hearsay.
Clause 60, which contains an exception to the hearsay rule for evidence that
is admitted for a non-hearsay purpose, does not apply to evidence of an
admission in a criminal proceeding.
Clause 83 Exclusion of evidence of admissions as against third parties
(1)
Section 81 does not prevent the application of the hearsay rule or
the opinion rule to evidence of an admission in respect of the case
of a third party.
(2)
The evidence may be used in respect of the case of a third party if
that party consents.
(3)
Consent cannot be given in respect of part only of the evidence.
(4)
In this section:
third party means a party to the proceeding concerned, other than
the party who:
(a)
made the admission; or
(b)
adduced the evidence.
Clause 83 Exclusion of evidence of admissions as against third parties
An admission by one defendant cannot be used against another defendant
unless the second defendant consents to the entire evidence being used.
Consent cannot be given to only part of the evidence.
90
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 84 Exclusion of admissions influenced by violence and certain
other conduct
(1)
(2)
Evidence of an admission is not admissible unless the court is
satisfied that the admission, and the making of the admission, were
not influenced by:
(a)
violent, oppressive, inhuman or degrading conduct, whether
towards the person who made the admission or towards
another person; or
(b)
a threat of conduct of that kind.
Subsection (1) only applies if the party against whom evidence of
the admission is adduced has raised in the proceeding an issue
about whether the admission or its making were so influenced.
Clause 84 Exclusion of admissions influenced by violence and certain
other conduct
If the party against whom evidence of an admission is being led raises an
issue in the proceeding about whether the admission was influenced by
violent, oppressive, inhuman or degrading conduct, or by a threat of such
conduct, evidence of the admission is not admissible unless the court is
satisfied that the admission was not influenced by that conduct, or by a threat
of that conduct.
This clause replaces the ‘voluntariness rule’. It also applies in both criminal
and civil proceedings. The relevant test is not ‘whether the will has been
overborne’. Instead, the admission must not be ‘influenced by’ violent,
oppressive, inhuman or degrading conduct. This is a lower standard. It is
also irrelevant who engaged in the conduct as it is not limited to conduct of an
‘investigating official’ (compared to clause 85).
As in the common law, the issue of inadmissibility must be raised, although
that can be in the prosecution case. Once the issue is raised the prosecution
must discharge the onus on the balance of probabilities, (for example in a voir
dire (see clause 189)), that the admission was not influenced by the conduct,
before the evidence is admitted.
Clause 85 Criminal proceedings – reliability of admissions by
defendants
(1)
This section applies only in a criminal proceeding and only to
evidence of an admission made by a defendant:
91
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(a)
to, or in the presence of, an investigating official who at that
time was performing functions in connection with the
investigation of the commission, or possible commission, of an
offence; or
(b)
as a result of an act of another person who was, and who the
defendant knew or reasonably believed to be, capable of
influencing the decision whether a prosecution of the
defendant should be brought or should be continued.
Note for subsection (1)
Subsection (1) is inserted as a response to the decision of the High
Court of Australia in Kelly v The Queen (2004) 218 CLR 216.
(2)
Evidence of the admission is not admissible unless the
circumstances in which the admission was made were such as to
make it unlikely that the truth of the admission was adversely
affected.
(3)
Without limiting the matters that the court may take into account for
the purposes of subsection (2), it is to take into account:
(a)
any relevant condition or characteristic of the person who
made the admission, including age, personality and education
and any mental, intellectual or physical disability to which the
person is or appears to be subject; and
(b)
if the admission was made in response to questioning:
(i)
the nature of the questions and the manner in which
they were put; and
(ii)
the nature of any threat, promise or other inducement
made to the person questioned.
Clause 85 Criminal Proceedings: reliability of admissions by defendants
This clause relates to defendants in criminal proceedings. The provision is
limited to admissions to or in the presence of ‘investigating officials’, which
replicates to a certain extent the common law requirement of a ‘person in
authority’.
Evidence of an admission by a defendant ‘is not admissible unless the
circumstances in which the admission was made were such as to make it
unlikely that the truth of the admission was adversely affected’. This is
decided on the balance of probabilities. Reliability of the confession is also a
significant factor at common law.
Clause 85(1) is part of the amendments following ALRC 102. It establishes
that the relevant admissions under the clause are either—
92
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(a)
an admission made to or in the presence of an investigating official (a
defined term), who at that time was performing functions in connection
with the investigation of the commission, or possible commission, of an
offence; or
(b)
an admission made as a result of an act of another person who was, and
who the defendant knew or reasonably believed to be, capable of
influencing the decision whether a prosecution should be brought or
continued.
In comparison, the previous section 85 of the UEA is limited to an admission
made ‘in the course of questioning’. The new sub-clause was inserted to
address the interpretation of the term ‘in the course of official questioning’
expressed by the majority in the decision of the High Court of Australia in
Kelly v The Queen (2004) 218 CLR 216. The majority there held that the
phrase ‘in the course of official questioning’ in a particular Act ‘marks out a
period of time running from when questioning commenced to when it ceased’.
This is a narrow interpretation, and gave a wide discretion to police to
nominate when the official questioning started and ceased. The new clause
gives a broader test not turning on whether the maker of the admission was in
custody, arrested, or was suspected of having committed an offence, and
there is no requirement of a causal connection between the official’s conduct
and the making of the admission. There must, however, be a linkage to the
offence.
The requirements in clause 85 are designed to place minimal administrative
or resource demands on the police (for instance there is no general duty to
ensure that admissions are made in circumstances that are unlikely to
adversely affect the truth of the admission). However, it is simultaneously
intended to ensure that the prosecution can demonstrate reliability in cases
where the truth of an admission may be in doubt due to the circumstances in
which it was made.
Clause 85 is designed to be broad enough to cover the period where the
investigating official is performing functions in connection with the
investigation of the commission, or possible commission, of an offence.
Accordingly, any admissions made to police during this time will fall within the
scope of clause 85. The breadth of this provision is consistent with the
traditional caution with which the law treats admissions made to police officers
and to other persons in authority.
This clause departs from the recommendations in ALRC 102 in two respects.
First, subclause (1)(b) is intended to make it clear that covert operatives are
not within the ambit of the provision. The definition of ‘investigating official’ in
the dictionary specifically excludes an officer involved in covert operations, so
the clause will not apply to admissions made to undercover police.
Clause 85(1)(b) refers to someone who ‘the defendant knew, or reasonably
believed to be capable of influencing the decision whether a prosecution of
the defendant should be brought’, which again would exclude an undercover
93
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
policeman.
Secondly, the term ‘official questioning’ has been removed from other parts of
the Bill so as to avoid any uncertainty. This has occurred in clauses 89, 139,
165 and the Dictionary.
The Police Administration Act (NT) provisions (ss139-143) regarding
questioning of persons in custody would still be preserved pursuant to
clause 8(1).
Clause 86 Exclusion of records of oral questioning
(1)
This section applies only in a criminal proceeding and only if an oral
admission was made by a defendant to an investigating official in
response to a question put or a representation made by the official.
(2)
A document prepared by or on behalf of the official is not
admissible to prove the contents of the question, representation or
response unless the defendant has acknowledged that the
document is a true record of the question, representation or
response.
(3)
The acknowledgement must be made by signing, initialling or
otherwise marking the document.
(4)
In this section:
document does not include:
(a)
a sound recording, or a transcript of a sound recording; or
(b)
a recording of visual images and sounds, or a transcript of the
sounds so recorded.
Clause 86 Exclusion of records of oral questioning
The purpose of this clause is to limit the circumstances in which documentary
evidence, such as a statement of evidence containing an admission, is used
to prove the contents of the statement.
This clause makes inadmissible in a criminal proceeding, any document
(other than a sound or video recording, or transcript of such a recording)
purporting to be a record of interview by an investigating official with a
defendant unless the defendant acknowledged the document as a true record
by signing or otherwise marking it.
However, it does not in any way limit the admissibility of oral evidence
regarding any such admission, where this evidence comes within an
exception to the hearsay rule. Nor does it affect current requirements in
relation to the taping, for example, of ‘records of interview’. Furthermore,
94
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
where such documentary evidence is admissible pursuant to other Acts, this
clause will not apply.
Clause 87 Admissions made with authority
(1)
(2)
For the purpose of determining whether a previous representation
made by a person is also taken to be an admission by a party, the
court is to admit the representation if it is reasonably open to find
that:
(a)
when the representation was made, the person had authority
to make statements on behalf of the party in relation to the
matter with respect to which the representation was made; or
(b)
when the representation was made, the person was an
employee of the party, or had authority otherwise to act for the
party, and the representation related to a matter within the
scope of the person's employment or authority; or
(c)
the representation was made by the person in furtherance of a
common purpose (whether lawful or not) that the person had
with the party or one or more persons including the party.
For the purposes of this section, the hearsay rule does not apply to
a previous representation made by a person that tends to prove:
(a)
that the person had authority to make statements on behalf of
another person in relation to a matter; or
(b)
that the person was an employee of another person or had
authority otherwise to act for another person; or
(c)
the scope of the person's employment or authority.
Clause 87 Admissions made with authority
This clause sets out the circumstances in which a representation made by
another person is treated as being an admission made by a party. A
representation made by another person is taken also to have been made by a
party if—
(a)
the person had authority to make statements on behalf of the party; or
(b)
it was made by an employee or agent about a matter within the scope of
the person's employment or authority; or
(c)
it was made in furtherance of a common purpose with the party.
For the purposes of the clause, an exception to the hearsay rule is provided
for evidence of a previous representation made by a person about his or her
95
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
employment or authority to make statements or act on behalf of a party.
Clause 88 Proof of admissions
For the purpose of determining whether evidence of an admission is
admissible, the court is to find that a particular person made the
admission if it is reasonably open to find that he or she made the
admission.
Clause 88 Proof of admissions
A court can admit evidence of an alleged admission if it is reasonably open to
find that the admission was made.
Clause 89 Evidence of silence
(1)
In a criminal proceeding, an inference unfavourable to a party must
not be drawn from evidence that the party or another person failed
or refused:
(a)
to answer one or more questions; or
(b)
to respond to a representation;
put or made to the party or other person by an investigating official
who at that time was performing functions in connection with the
investigation of the commission, or possible commission, of an
offence.
(2)
Evidence of that kind is not admissible if it can only be used to draw
such an inference.
(3)
Subsection (1) does not prevent use of the evidence to prove that
the party or other person failed or refused to answer the question or
to respond to the representation if the failure or refusal is a fact in
issue in the proceeding.
(4)
In this section:
inference includes:
(a)
an inference of consciousness of guilt; or
(b)
an inference relevant to a party's credibility.
Clause 89 Evidence of silence
This provision is narrower than the common law position. Unfavourable
inferences (including an inference of consciousness of guilt or an inference
96
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
relevant to a party's credibility) are prohibited from being drawn in a criminal
proceeding from a failure by a person to answer a question, or respond to a
representation, from an investigating official performing functions in
connection with the investigation of the commission, or possible commission,
of an offence. If the only use that can be made of the evidence of the silence
would be to draw such an unfavourable inference, the evidence of the silence
itself is inadmissible.
The application of this clause is limited to the evidence of the silence and is
not intended to prevent the drawing of adverse inferences from the giving of
inconsistent accounts.
The clause does not prevent use of the evidence to prove that the party or
other person refused to answer the question or respond to the representation
if the refusal is a fact in issue in the proceedings.
In some circumstances silence might be treated as an admission under
clause 81. The common law right to silence, the privilege against self
incrimination, and the protections over inferences drawn from silence, at and
before trial, still apply however.
Clause 90
Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an
admission, or refuse to admit the evidence to prove a particular fact, if:
(a)
the evidence is adduced by the prosecution; and
(b)
having regard to the circumstances in which the admission was
made, it would be unfair to a defendant to use the evidence.
Note for section 90
Part 3.11 contains other exclusionary discretions that are applicable to
admissions.
Clause 90 Discretion to exclude admissions
If, in a criminal proceeding, having regard to the circumstances in which an
admission was made, it would be unfair to an accused to use evidence of the
admission in the prosecution case, the court may refuse to admit the
admission at all, or admit the admission, but limit its use.
Clause 90 is the ‘fairness discretion’ and to an extent it reflects the common
law position. Clause 138 also excludes improperly or illegally obtained
evidence, and it is best the two clauses are looked at in combination. Clause
90 however only applies to admissions.
R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 states the
reformulated common law regarding confessions. The common law test
97
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
starts with the question of voluntariness, then to considerations of reliability,
leading to an overall discretion taking account of all the circumstances to
determine whether the admission of the evidence or the obtaining of the
conviction is bought at too high a price.
The overall discretion is broad and takes into account questions of fairness,
public policy, and ‘protection of the rights and privileges of the accused’. This
approach has influenced the application of clause 90 and clause 138
(exclusion of illegally or improperly obtained evidence). The majority in
Swaffield said the approach reflected the UEA when the relevant provisions
(i.e. clause 90, & clauses 136-138), are taken in combination. Although
‘voluntariness’ is not mentioned in the UEA, it would be likely to be unfair to
admit evidence of an admission that would not have been regarded as
voluntary at common law.
It is hard to mark out the full extent of the discretion in clause 90, with the
High Court seeming to take a restrictive view as to its application. For
example, it has variously been held; it is not unfair to use a confession which
has been lawfully compelled at a Royal Commission; covert recordings are
not necessarily unfair; and persistence in questioning leading to unfairness is
a matter of degree. Common law principles do, however, apply to admissions
made to police informers.
Part 3.5
Evidence of judgments and convictions
This
Part
abolishes
the
rule
known
as
the
rule
in
Hollington v Hewthorn [1943] KB 587. In that case, evidence of a conviction
was held to be inadmissible in civil proceedings to prove the facts on which it
was based.
Clause 91 Exclusion of evidence of judgments and convictions
(1)
Evidence of the decision, or of a finding of fact, in an Australian or
overseas proceeding is not admissible to prove the existence of a
fact that was in issue in that proceeding.
(2)
Evidence that, under this Part, is not admissible to prove the
existence of a fact may not be used to prove that fact even if it is
relevant for another purpose.
Note for section 91
Section 178 (Convictions, acquittals and other judicial proceedings)
provides for certificate evidence of decisions.
Clause 91 Exclusion of evidence of judgements and convictions
Evidence of a decision or a finding of fact in a proceeding is not admissible to
prove the existence of a fact that was in issue in that proceeding. The clause
makes it clear that once such evidence is prohibited (under this Part) from
98
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
proving a fact in issue, even if it is admitted for some other relevant purpose, it
cannot then be used in contravention of this clause.
There are exceptions to this in clause 92 for a grant of probate, letters of
administration or similar orders to prove a person’s death, or the execution of
a testamentary document. Evidence of a conviction for a criminal offence
may be admitted in civil proceedings. Clause 178 provides for certificate
evidence of convictions, sentences, acquittals and other judicial proceedings.
Clause 92 Exceptions
(1)
(2)
(3)
Section 91(1) does not prevent the admission or use of evidence of
the grant of probate, letters of administration or a similar order of a
court to prove:
(a)
the death, or date of death, of a person; or
(b)
the due execution of a testamentary document.
In a civil proceeding, section 91(1) does 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, not being a
conviction:
(a)
in respect of which a review or appeal (however described)
has been instituted but not finally determined; or
(b)
that has been quashed or set aside; or
(c)
in respect of which a pardon has been given.
The hearsay rule and the opinion rule do not apply to evidence of a
kind referred to in this section.
Clause 92 Exceptions
This clause provides two exceptions to the basic rule set out in clause 91.
The first exception provides that evidence of a grant of probate or letters of
administration to prove death, date of death or the due execution of a will is
admissible.
The second exception provides for the admissibility of evidence in civil
proceedings of convictions (but not acquittals) of a party or a person through
or under whom a party claims (not being convictions under review, or that
have been quashed or set aside, or in respect of which a pardon has been
given).
99
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 93 Savings
This Part does not affect the operation of:
(a)
a law that relates to the admissibility or effect of evidence of a
conviction tendered in a proceeding (including a criminal
proceeding) for defamation; or
(b)
a judgment in rem; or
(c)
the law relating to res judicata or issue estoppel.
Clause 93 Savings
This clause preserves existing law that enables evidence of convictions to be
admitted in defamation proceedings and the rules relating to judgments in
rem, res judicata and issue estoppel.
Part 3.6
Tendency and coincidence
This Part provides for the admissibility of evidence relating to conduct,
reputation, character and tendency of parties and witnesses that is relevant to
a fact in issue in the proceedings.
Credibility evidence is dealt with in Part 3.7. Part 3.8 sets out rules relating to
evidence of the character of a defendant in a criminal proceeding.
Tendency evidence is excluded under this part (the ‘tendency rule’ clause 97).
Tendency evidence is evidence of conduct or character introduced to prove a
‘tendency’ to act or think in a particular way. The evidence may, however, be
admitted if it has significant probative value and reasonable notice has been
given. Tendency evidence may often be relevant but lack significant
probative value.
The ‘coincidence rule’ (clause 98) forbids evidence that ‘two or more events
occurred’ to prove that a person did a particular act or had a particular state of
mind, on the basis that having regard to any similarities in the events or the
circumstances ‘it is improbable that the events occurred coincidentally’.
Again, the evidence may be admitted if it has significant probative value and
reasonable notice has been given.
Both the tendency rule and the
coincidence rule apply in civil and criminal proceedings.
Clause 94 Application
(1)
This Part does not apply to evidence that relates only to the
credibility of a witness.
(2)
This Part does not apply so far as a proceeding relates to bail or
sentencing.
100
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(3)
This Part does not apply to evidence of:
(a)
the character, reputation or conduct of a person; or
(b)
a tendency that a person has or had;
if that character, reputation, conduct or tendency is a fact in issue.
Clause 94 Application
This clause provides that part 3.6 rules do not apply to evidence that relates
only to the credibility of a witness, bail or sentencing proceedings, evidence of
character, reputation, conduct or tendency if that character, reputation,
conduct or tendency is a fact in issue. Examples would be in a defamation
case where justification is pleaded, or a parole hearing where a fact in issue
may be the prisoner’s dangerousness.
Clause 95 Use of evidence for other purposes
(1)
Evidence that under this Part is not admissible to prove a particular
matter must not be used to prove that matter even if it is relevant for
another purpose.
(2)
Evidence that under this Part cannot be used against a party to
prove a particular matter must not be used against the party to
prove that matter even if it is relevant for another purpose.
Clause 95 Use of evidence for other purposes
Evidence of tendency or coincidence, if admitted for another purpose, may
not be also used in the prescribed way (i.e. as tendency or coincidence
evidence). This is opposite to the way that hearsay evidence is treated
where, if the evidence is admitted for another purpose, it can also be used to
prove the existence of the fact that the person intended to assert.
Evidence that may not be subject to the tendency rule includes evidence that
may be relevant to a fact in issue, where the relevance is not dependent on
the drawing of an inference of tendency from the evidence. For example,
evidence of prior conduct revealing a motive for the crime charged or
evidence relevant to a person's state of mind. If such evidence is admitted, it
cannot then also be used for a tendency purpose.
Clause 96 Failure to act
A reference in this Part to doing an act includes a reference to failing to
do that act.
101
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 96 Failure to act
A reference in Part 3.6 to the doing of an act includes a reference to a failure
to do the act.
Clause 97 The tendency rule
(1)
(2)
Evidence of the character, reputation or conduct of a person, or a
tendency that a person has or had, is not admissible to prove that a
person has or had a tendency (whether because of the person's
character or otherwise) to act in a particular way, or to have a
particular state of mind unless:
(a)
the party seeking to adduce the evidence gave reasonable
notice in writing to each other party of the party's intention to
adduce the evidence; and
(b)
the court thinks that the evidence will, either by itself or having
regard to other evidence adduced or to be adduced by the
party seeking to adduce the evidence, have significant
probative value.
Subsection (1)(a) does not apply if:
(a)
the evidence is adduced in accordance with any directions
made by the court under section 100; or
(b)
the evidence is adduced to explain or contradict tendency
evidence adduced by another party.
Note for section 97
The tendency rule is subject to specific exceptions concerning
character of and expert opinion about accused persons
(sections 110 and 111). Other provisions of this Act, or of
other laws, may operate as further exceptions.
Clause 97 The tendency rule
This clause sets out the tendency rule. The rule deals with the admission of
evidence of a person's character, reputation, conduct or tendency where the
evidence is being admitted to prove that the person has or had a tendency to
act in a particular way or to have a particular state of mind.
There is an exception to the tendency rule. Tendency evidence can be
admitted under this clause if appropriate notice is given (or the court
dispenses with the notice requirement under clause 100) and the court finds
that the evidence has significant probative value.
A common law analysis of what might constitute ‘significant probative value’
102
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
for the purposes of clause 97, can help in the understanding of the UEA
requirements. The common law has been said to have ‘a healthy scepticism
in relation to similar fact evidence’, although care must be taken in applying
common law tests of significant probative value to criminal proceedings. It is
not essential that the evidence reveal ‘striking similarities’ or ‘unusual
features’, but the High Court’s acceptance of similar fact evidence in
appropriate cases before the enactment of the UEA can still guide the
reasoning as to whether evidence is capable of having significant probative
value.
Probative value is defined as the extent to which the evidence could
rationally affect the assessment of the probability of the existence of a fact in
issue.
Once the evidence is found to have probative value, the exception applies
where the court thinks the probative value is significant. Although the term
‘significant’ is not defined, it is not intended to mean ‘substantial’. ALRC 102
concluded that the term is well defined in common law, and means something
more than mere relevance, but less than a substantial degree of relevance.
Whether the probative value of the evidence is significant or not will depend
on the circumstances of the case and the fact(s) in issue. The court can
consider the evidence alone, or in relation to other evidence.
Evidence of similar fact and evidence of coincidence can be admitted for other
purposes than as similar fact or coincidence, but the evidence must not then
be used for the purpose of similar fact or coincidence. Careful directions as to
the use the evidence can be put must be given in jury trials.
For additional consideration regarding admissibility of tendency evidence in
relation to criminal proceedings see clause 101 below.
Tendency evidence adduced to explain or contradict tendency evidence
adduced by another party is not excluded by this clause.
The Note to clause 97 provides that other specific exceptions to the tendency
rule are contained in clauses 110 and 111. These specific exceptions relate
to character evidence of an accused and permit the admission of evidence, in
some circumstances, that would otherwise be inadmissible due to the
tendency rule.
103
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 98 The coincidence rule
(1)
Evidence that 2 or more events occurred is not admissible to prove
that a person did a particular act or had a particular state of mind on
the basis that, having regard to any similarities in the events or the
circumstances in which they occurred, or any similarities in both the
events and the circumstances in which they occurred, it is
improbable that the events occurred coincidentally unless:
(a)
the party seeking to adduce the evidence gave reasonable
notice in writing to each other party of the party's intention to
adduce the evidence; and
(b)
the court thinks that the evidence will, either by itself or having
regard to other evidence adduced or to be adduced by the
party seeking to adduce the evidence, have significant
probative value.
Note for subsection (1)
One of the events referred to in subsection (1) may be an event the
occurrence of which is a fact in issue in the proceeding.
(2)
Subsection (1)(a) does not apply if:
(a)
the evidence is adduced in accordance with any directions
made by the court under section 100; or
(b)
the evidence is adduced to explain or contradict coincidence
evidence adduced by another party.
Note for section 98
Other provisions of this Act, or of other laws, may operate as
exceptions to the coincidence rule.
Clause 98 The coincidence rule
The coincidence rule prevents the admission of evidence of the occurrence of
two or more events that is being tendered to prove that, because of the
improbability of the events occurring coincidentally, a person did a particular
act or had a particular state of mind.
The clause applies where the party adducing the evidence of the two or more
events relies on similarities in the events or any similarities in the
circumstances in which the events occurred. The clause also applies where
the evidence of the two or more events relies on any similarities in both the
events and circumstances in which the events occurred.
There is an exception to the coincidence rule which is the same as for the
tendency rule. Coincidence evidence can be admitted under this clause if
appropriate notice is given and the court finds that the evidence of the two or
104
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
more events has significant probative value. The assessment of probative
value can take into account other evidence, not just the coincidence evidence
alone.
The clause applies to both civil and criminal proceedings. For additional
consideration regarding admissibility of coincidence evidence in relation to
criminal proceedings, see clause 101 below.
The Note to subclause (1) clarifies the intention and effect of the provision by
stating that the two or more related events, which constitute the coincidence
evidence, may include an event that is a fact in issue in the proceeding.
The exclusionary coincidence rule does not apply to coincidence evidence
adduced to explain or contradict coincidence evidence adduced by another
party.
Clause 99 Requirements for notices
Notices given under section 97 or 98 are to be given in accordance with
any regulations or rules of court made for the purposes of this section.
Clause 99 Requirements for notices
Notice under clause 97 or 98 is to be given in accordance with the regulations
or rules of court.
Clause 100 Court may dispense with notice requirements
(1)
The court may, on the application of a party, direct that the
tendency rule is not to apply to particular tendency evidence
despite the party's failure to give notice under section 97.
(2)
The court may, on the application of a party, direct that the
coincidence rule is not to apply to particular coincidence evidence
despite the party's failure to give notice under section 98.
(3)
The application may be made either before or after the time by
which the party would, apart from this section, be required to give,
or to have given, the notice.
(4)
In a civil proceeding, the party's application may be made without
notice of it having been given to one or more of the other parties.
(5)
The direction:
(a)
is subject to such conditions (if any) as the court thinks fit; and
(b)
may be given either at or before the hearing.
105
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(6)
Without limiting the court's power to impose conditions under this
section, those conditions may include one or more of the following:
(a)
a condition that the party give notice of its intention to adduce
the evidence to a specified party, or to each other party other
than a specified party;
(b)
a condition that the party give such notice only in respect of
specified tendency evidence, or all tendency evidence that the
party intends to adduce other than specified tendency
evidence;
(c)
a condition that the party give such notice only in respect of
specified coincidence evidence, or all coincidence evidence
that the party intends to adduce other than specified
coincidence evidence.
Clause 100 Court may dispense with notice requirements
This clause sets out the circumstances in which the court may dispense with
notice requirements. It enables the court, on the application of a party, to
direct that the tendency rule or coincidence rule is not to apply to particular
evidence despite the party's failure to give notice under clauses 97 or 98.
Clause 101 Further restrictions on tendency evidence and coincidence
evidence adduced by prosecution
(1)
This section only applies in a criminal proceeding and so applies in
addition to sections 97 and 98.
(2)
Tendency evidence about a defendant, or coincidence evidence
about a defendant, that is adduced by the prosecution cannot be
used against the defendant unless the probative value of the
evidence substantially outweighs any prejudicial effect it may have
on the defendant.
(3)
This section does not apply to tendency evidence that the
prosecution adduces to explain or contradict tendency evidence
adduced by the defendant.
(4)
This section does not apply to coincidence evidence that the
prosecution adduces to explain or contradict coincidence evidence
adduced by the defendant.
Clause 101 Further restrictions on tendency evidence and coincidence
evidence adduced by the prosecution
In criminal proceedings tendency evidence and coincidence evidence
adduced by the prosecution cannot be used against the defendant unless the
probative value of the evidence substantially outweighs its prejudicial effect.
106
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
This provision is similar to clause 137 (general discretion to exclude
evidence), although here the probative value must substantially outweigh the
prejudicial effect, whereas in clause 137 the probative value must simply
outweigh the prejudicial effect. The meaning of substantial is of course
ambiguous and ‘calculated to conceal a lack of precision’.
Clause 101 also refers to ‘any prejudicial effect (the evidence) may have’
rather than ‘the danger of unfair prejudice’ as in clause 137.
The structure of the language in this provision by referring to ‘tendency and
coincidence evidence adduced by the prosecution…’ implies the evidence has
already been adduced and the clause then restricts to the point of oblivion the
use that may be made of it. The language of clauses 97 and 98, however,
states the evidence ‘is not admissible to prove that…’ The courts have
proceeded as if there was no real difference in the two choices of words, and
have assumed that if the evidence cannot be used against the defendant it
should not be admitted at all.
There is much controversy over evidence introduced for other purposes, that
happens to overlap with tendency or coincidence evidence, such as evidence
of motive or opportunity. Relationship evidence is particularly problematic and
can, for example, use a history of sexual or physical violence to explain issues
of ‘consent’, while also showing a tendency to violence. Evidence identifying
the defendant with the crime charged could, for example, be evidence of
proceeds of other robberies found at the defendant’s house and also at the
scene of a murder, hence implicating the defendant in the murder and
showing he or she was involved in other criminal activity or had a tendency to
be involved in criminal activities. Similar allegations can sometimes be crossadmissible as, for example, in some alleged sexual assaults, but where the
possibility of joint concoction or contamination exists it probably would not
pass the test.
Clause 101(2) requires the prosecution to establish that the probative value of
the evidence substantially outweighs any prejudicial effect it may have on the
defendant. The prejudicial effect of tendency evidence is that the ordinary
person thinks that someone with an established tendency to conduct himself
or herself in a certain way whenever a particular opportunity arises will yield to
that tendency and so conduct himself or herself in the circumstances of the
particular case. As such evidence is circumstantial in nature, the prosecution
must establish that there is no reasonable view of the evidence available
which is consistent with the innocence of the defendant. That is what is
required by clause 101(2).
The balancing will of course turn on the facts of each case.
Where tendency evidence or coincidence evidence is proposed to be
introduced, the prosecution bears the onus of establishing that the probative
value of the evidence substantially outweighs any prejudicial effect it may
have on the defendant. This is a more stringent test than clause137.
107
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
This clause does not prevent the prosecution from adducing tendency or
coincidence evidence to explain or contradict tendency or coincidence
evidence adduced by the defendant, although the defendant can still argue
the prejudicial effect outweighs the probative value and clause 137 should be
applied.
Part 3.7
Credibility
Division 1
Credibility evidence
Clause 101A defines ‘credibility evidence’. Clause 102 creates the ‘credibility
rule’, that credibility evidence about a witness is not admissible. An exception
is provided by clause 108C for expert evidence concerning the credibility of a
witness.
Cross-examination on credibility is allowed by clause 103 if it could
‘substantially affect’ the assessment of credibility of a witness.
Clause 101A Credibility evidence
Credibility evidence, in relation to a witness or other person, is
evidence relevant to the credibility of the witness or person that:
(a)
is relevant only because it affects the assessment of the credibility
of the witness or person; or
(b)
is relevant:
(i)
because it affects the assessment of the credibility of the
witness or person; and
(ii)
for some other purpose for which it is not admissible, or cannot
be used, because of a provision of Parts 3.2 to 3.6.
Notes for section 101A
1
Sections 60 and 77 will not affect the application of paragraph (b),
because they cannot apply to evidence that is yet to be admitted.
2
Section 101A is inserted as a response to the decision of the High
Court of Australia in Adam v The Queen (2001) 207 CLR 96.
Clause 101A Credibility evidence
Clause 101A inserts a definition of the evidence to which the ‘credibility rule’
in clause 102 applies. ‘Credibility’ evidence is either evidence that is;
(a)
relevant only because it affects the assessment of the credibility of the
witness or person; or
108
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(b)
relevant because it affects the assessment of credibility and is relevant,
but not admissible, or cannot be used, for some other purpose under
Parts 3.2 to 3.6 of the Bill. (Hearsay, opinion, admissions, evidence of
judgements and convictions, and tendency and coincidence).
Paragraph (b) has been inserted to address the decision of the High Court of
Australia in Adam v The Queen (2001) 207 CLR 96, Prior to Adam, the
provisions in Part 3.7 controlled the admissibility of evidence so that the
credibility rule applied if evidence was relevant both to credibility and a fact in
issue, even where the evidence was admissible for the purpose of proving a
fact in issue.
The High Court in Adam considered section 102 of the UEA’s, which is in
effect the same as clause 101A(a) of this Bill. The result of that decision is
that use of evidence for more than one purpose, including credibility, depends
entirely upon the exercise of the discretions and exclusionary rules contained
in clauses 135 to 137. This has the potential to lead to greater uncertainty,
inconsistent outcomes and increased appeals.
The introduction of the elements in clause 101A(b) make evidence relevant to
both credibility and a fact in issue, but not admissible for the latter purpose,
subject to the same rules as other credibility provisions.
The Note to clause 101A clarifies that clauses 60 (exception to the hearsay
rule) and 77 (exception to the opinion rule) are not relevant in the
determination of admissibility for another purpose under clause 101A because
they cannot apply to evidence which has not yet been admitted. The inclusion
of this note is in response to the decision in Adam.
If evidence is relevant but not admissible because of a prohibited purpose in
the provisions of Parts 3.2 to 3.6, (i.e. hearsay, opinion, admissions, evidence
of judgements and convictions, tendency and coincidence), and is also
relevant because it affects the credibility of a person or witness, the credibility
rule applies to the evidence and it is not admissible. If, however, the evidence
is not only relevant because it affects the credibility of a person but also
relevant and admissible for another purpose, it is not ‘credibility evidence’ as
defined, and Part 3.7 does not apply to the evidence. Thus it may be used to
affect the assessment of the credibility of that person or witness. This is of
course subject to the operation of the discretion in clause 136.
Division 2
Credibility of witnesses
Clause 102 The credibility rule
Credibility evidence about a witness is not admissible.
Notes for section 102
1
Specific exceptions to the credibility rule are as follows:
109
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act

evidence adduced in cross-examination (sections 103 and
104)

evidence in rebuttal of denials (section 106)

evidence to re-establish credibility (section 108)

evidence of persons with specialised knowledge (section
108C)

character of accused persons (section 110)
2
Other provisions of this Act, or of other laws, may operate as further
exceptions.
3
Sections 108A and 108B deal with the admission of credibility
evidence about a person who has made a previous representation
but is not a witness.
Clause 102 The credibility rule
Clause 102 states the ‘credibility rule’ which is that ‘credibility evidence about
a witness is not admissible’. There follows a list of specific exceptions to the
credibility rule including evidence adduced in cross-examination (clauses 103
and 104), rebuttal of denials (clause 106), evidence to re-establish credibility
(clause 108), experts (clause 108C), and the character of accused persons
(clause 110).
Clause 103 Exception – cross-examination as to credibility
(1)
The credibility rule does not apply to evidence adduced in crossexamination of a witness if the evidence could substantially affect
the assessment of the credibility of the witness.
(2)
Without limiting the matters to which the court may have regard for
the purposes of subsection (1), it is to have regard to:
(a)
whether the evidence tends to prove that the witness
knowingly or recklessly made a false representation when the
witness was under an obligation to tell the truth; and
(b)
the period that has elapsed since the acts or events to which
the evidence relates were done or occurred.
Clause 103 Exception – Cross-examination as to credibility
Clause 103 provides that although credibility evidence is prima facie
inadmissible, credibility evidence may be adduced in cross-examination of the
witness if the evidence ‘could substantially affect the assessment of the
credibility of the witness’. The word ‘substantial’ imposes a limitation that is
different to the common law where almost anything is allowed on the issue of
credit.
110
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Under this clause, the test is not whether the evidence has substantial
probative value. Prior to amendments following ALRC 102 the test under
section 103 of the UEA was whether the evidence has substantial probative
value and common law interpretation of this section considered the
co-existing definition of probative value in the Dictionary. The two provisions
combined had the unintended effect of shifting the focus from issues of
credibility. This clause now makes it clear that the evidence relevant to
credibility must be substantial in order to be admitted.
Clause 104 Further protections – cross-examination as to credibility
(1)
This section applies only to credibility evidence in a criminal
proceeding and so applies in addition to section 103.
(2)
A defendant must not be cross-examined about a matter that is
relevant to the assessment of the defendant's credibility, unless the
court gives leave.
(3)
Despite subsection (2), leave is not required for cross-examination
by the prosecutor about whether the defendant:
(4)
(5)
(6)
(a)
is biased or has a motive to be untruthful; or
(b)
is, or was, unable to be aware of or recall matters to which his
or her evidence relates; or
(c)
has made a prior inconsistent statement.
Leave must not be given for cross-examination by the prosecutor
under subsection (2) unless evidence adduced by the defendant
has been admitted that:
(a)
tends to prove that a witness called by the prosecutor has a
tendency to be untruthful; and
(b)
is relevant solely or mainly to the witness's credibility.
A reference in subsection (4) to evidence does not include a
reference to evidence of conduct in relation to:
(a)
the events in relation to which the defendant is being
prosecuted; or
(b)
the investigation of the offence for which the defendant is
being prosecuted.
Leave is not to be given for cross-examination by another
defendant unless:
(a)
the evidence that the defendant to be cross-examined has
111
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
given includes evidence adverse to the defendant seeking
leave to cross-examine; and
(b)
that evidence has been admitted.
Clause 104 Further protections – cross-examination as to credibility
Clause 104 provides an additional safeguard in relation to credibility evidence
by limiting cross-examination of a defendant who gives evidence in criminal
proceedings, unless the court gives leave. This provision only applies to
credibility evidence as defined by clause 101A and therefore does not apply to
evidence that, although being relevant because it affects the credibility of a
witness or person, is also relevant and admissible for another purpose.
This restriction therefore does not include cross-examination bearing upon the
defendant’s guilt or innocence, or cross-examination about inconsistencies,
omissions or other weaknesses in a defendant’s evidence. Leave is not
required for cross-examination on a defendant’s motive to be untruthful, bias,
recall, or about a prior inconsistent statement.
The clause is intended to enable the court to exercise control over
unwarranted attacks on the credibility of a prosecution witness. Under
subclause (4), where leave is required, it must not be given to the prosecution
unless the defendant has adduced evidence that tends to prove that a
prosecution witness has a tendency to be untruthful and the evidence is
relevant solely or mainly to the witness's credibility. Subclause (5) makes it
clear that subclause (4) does not include a reference to evidence of conduct
in relation to the proceedings.
Under subclause (6) a second (or other) defendant cannot be given leave for
cross-examination unless the evidence of the first defendant is adverse to the
second (or other) defendant and that evidence has been admitted.
Evidence of a defendant’s convictions may be relevant to the defendant’s
credibility and may also be relevant to guilt by way of tendency reasoning. If
relevant to guilt, clause 105 will not apply (although clauses 97, 98, 110, and
112 may). If relevant solely to credibility then the discretionary exclusion
provisions in clauses 135 and 137 would be considered.
Clause 105 Further protections – defendants making unsworn
statements
Note for section 105
The Commonwealth Act formerly included a provision that only applied in
proceedings in a federal court sitting in Norfolk Island. This provision
has been repealed.
112
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 105
This clause contains no substantive provisions. Its inclusion ensures parity in
section numbering with the Commonwealth, Victorian and New South Wales
Acts.
Clause 106 Exception – rebutting denials by other evidence
(1)
The credibility rule does not apply to evidence that is relevant to a
witness's credibility and that is adduced otherwise than from the
witness if:
(a)
(b)
(2)
in cross-examination of the witness:
(i)
the substance of the evidence was put to the witness;
and
(ii)
the witness denied, or did not admit or agree to, the
substance of the evidence; and
the court gives leave to adduce the evidence.
Leave under subsection (1)(b) is not required if the evidence tends
to prove that the witness:
(a)
is biased or has a motive for being untruthful; or
(b)
has been convicted of an offence, including an offence against
the law of a foreign country; or
(c)
has made a prior inconsistent statement; or
(d)
is, or was, unable to be aware of matters to which his or her
evidence relates; or
(e)
has knowingly or recklessly made a false representation while
under an obligation, imposed by or under an Australian law or
a law of a foreign country, to tell the truth.
Clause 106 Exception – rebutting denials by other evidence
In specific circumstance the credibility rule does not apply to rebutting a
witness's denials by other evidence. This changes the ‘finality rule’ relating to
collateral matters that exists at common law, which was described by the
ALRC as ‘an artificial and inflexible limitation which may result in the court
being misled.’
Subclause (1)(a) sets out the specific circumstances—when in
cross-examination of the witness, the substance of the evidence is put to the
113
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
witness and it is denied, or the witness did not admit or agree to it. If the court
then gives leave, credibility evidence can be adduced.
The inclusion of the circumstance where the witness ‘did not admit or agree
to’ the substance of the evidence, is in response to ALRC 102. It found that a
sole requirement that the substance of the evidence be denied and that the
evidence be relevant to a defined category may prevent the admission of
important evidence for reasons of efficiency rather than fairness. Clause 107
creates a broader basis on which to admit evidence.
Subclause (2) provides that leave is not required where the evidence falls
within paragraphs (a) to (e). These circumstances include where the witness
is biased, has made a prior inconsistent statement or where the witness is, or
was, unable to be aware of matters to which their evidence relates.
Clause 107 Exception – application of certain provisions to makers of
representations
Note for section 107
This section has been repealed from the Commonwealth Act and NSW
Act.
Clause 107
This clause contains no substantive provisions. Its inclusion ensures parity in
section numbering with the Commonwealth, Victorian and New South Wales
Acts.
Clause 108 Exception – re-establishing credibility
(1)
The credibility rule does not apply to evidence adduced in
re-examination of a witness.
Note for subsection (2)
The Commonwealth Act formerly included a subsection (2) referring
to section 105 of that Act. That subsection has been repealed.
(3)
The credibility rule does not apply to evidence of a prior consistent
statement of a witness if:
(a)
evidence of a prior inconsistent statement of the witness has
been admitted; or
(b)
it is or will be suggested (either expressly or by implication)
that evidence given by the witness has been fabricated or
re-constructed (whether deliberately or otherwise) or is the
result of a suggestion;
114
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
and the court gives leave to adduce the evidence of the prior
consistent statement.
Clause 108 Exception – re-establishing credibility
This clause provides exceptions to the credibility rule. First, for evidence
adduced in re-examination of a witness. Secondly, if the court gives leave,
the credibility rule does not apply to evidence of a prior consistent statement
of a witness if:
(a)
evidence of a prior inconsistent statement of the witness has been
admitted; or
(b)
it is or will be suggested (either expressly or by implication) that evidence
given by the witness has been fabricated or re-constructed (whether
deliberately or otherwise) or is the result of a suggestion.
Evidence of recent complaint may be admitted as a prior consistent statement
if the suggestion referred to in clause 109(3)(b) has been or will be made, ie
that the evidence has been fabricated, reconstructed or is the result of
suggestion.
Division 3
Credibility of persons who are not witnesses
Clause 108A Admissibility of evidence of credibility of person who has
made a previous representation
(1)
If:
(a)
evidence of a previous representation has been admitted in a
proceeding; and
(b)
the person who made the representation has not been called,
and will not be called, to give evidence in the proceeding;
credibility evidence about the person who made the representation
is not admissible unless the evidence could substantially affect the
assessment of the person's credibility.
(2)
Without limiting the matters to which the court may have regard for
the purposes of subsection (1), it is to have regard to:
(a)
whether the evidence tends to prove that the person who
made the representation knowingly or recklessly made a false
representation when the person was under an obligation to tell
the truth; and
(b)
the period that elapsed between the doing of the acts or the
occurrence of the events to which the representation related
and the making of the representation.
115
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 108A Admissibility of evidence of credibility of person who has
made a previous representation
Subclause (1) applies to all situations in which evidence of a previous
representation has been admitted and where the maker of the representation
is not called to give evidence.
This clause reflects the new definition of credibility evidence (see clauses
102 and 103(2)) so that credibility evidence about the person will not be
admissible unless it could substantially affect the person's credibility.
Clause 108A only applies where the person who made the representation will
not be called to give evidence in the proceeding. Where that person is the
defendant or a witness for the defence, it will be up to the defence whether or
not to call that person to give evidence. However, this may not be decided
(or disclosed) prior to the close of the prosecution case, potentially leading to
uncertainty as to whether the relevant person who made the representation
will be called. Without this information, the prosecution cannot rely on the
provisions of clause 108A to admit credibility evidence.
However, clause 46 of the Bill provides that the court may give leave to a
party to recall a witness if another party raised a matter on which the relevant
witness was not cross-examined. Further, this problem can be overcome by
the prosecution later being able to reopen its case, or being allowed to call a
case in reply: see R v Siulai [2004] NSWCCA 152. See clause 108B below
for an additional consideration regarding defendants.
Clause 108B Further protections – previous representations of an
accused who is not a witness
(1)
This section applies only in a criminal proceeding and so applies in
addition to section 108A.
(2)
If the person referred to in that section is a defendant, the credibility
evidence is not admissible unless the court gives leave.
(3)
Despite subsection (2), leave is not required if the evidence is about
whether the defendant:
(4)
(a)
is biased or has a motive to be untruthful; or
(b)
is, or was, unable to be aware of or recall matters to which his
or her previous representation relates; or
(c)
has made a prior inconsistent statement.
The prosecution must not be given leave under subsection (2)
unless evidence adduced by the defendant has been admitted that:
(a)
tends to prove that a witness called by the prosecution has a
116
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
tendency to be untruthful; and
(b)
(5)
(6)
is relevant solely or mainly to the witness's credibility.
A reference in subsection (4) to evidence does not include a
reference to evidence of conduct in relation to:
(a)
the events in relation to which the defendant is being
prosecuted; or
(b)
the investigation of the offence for which the defendant is
being prosecuted.
Another defendant must not be given leave under subsection (2)
unless the previous representation of the defendant that has been
admitted includes evidence adverse to the defendant seeking
leave.
Clause 108B Further protections: previous representations of an
accused who is not a witness
This clause provides further protections in relation to previous representations
of a defendant who is not a witness. If evidence of a prior representation
made by the defendant in a criminal trial has been admitted, and the
defendant has not or will not be called to give evidence, the same restrictions
on adducing evidence relevant to the credibility of the defendant should apply
as under clause 104. This is to overcome the position in relation to section
108A of the UEA, which could permit a situation where the prosecution could
tender a prior representation of the defendant and then lead credibility
evidence against the defendant.
Subclause (2) provides that the prosecution must ordinarily seek the court's
leave where it wishes to tender evidence relevant only to a defendant's
credibility. When deciding whether to grant leave, the court is to take into
account matters in subclause (4).
Subclause (3) provides that leave is not required, however, where
cross-examination by the prosecutor relates to whether the defendant was
biased or had a motive to be untruthful, whether the defendant is, or was,
unable to be aware of or to recall matters to which his or her previous
representation relates, or whether the defendant has made a previous
inconsistent statement.
Under subclause (4), where leave is required, it must not be given to the
prosecution unless the defendant has adduced evidence that tends to prove
that a prosecution witness has a tendency to be untruthful and the evidence is
relevant solely or mainly to the witness's credibility. Subclause (5) makes it
clear that subclause (4) does not include a reference to evidence of conduct
in relation to the proceedings.
117
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Under subclause (4) there may be a situation where the defence adduces this
evidence after the prosecution has closed its case. The issues that arise in
this situation are discussed under clause 108A.
Under subclause (6) a second (or other) defendant cannot be given leave for
cross-examination unless the evidence of the first defendant is adverse to the
second (or other) defendant and that evidence has been admitted.
This clause was inserted in accordance with ALRC 102 (recommendation
12-6).
Division 4
Persons with specialised knowledge
Clause 108C Exception – evidence of persons with specialised
knowledge
(1)
The credibility rule does not apply to evidence given by a person
concerning the credibility of another witness if:
(a)
the person has specialised knowledge based on the person's
training, study or experience; and
(b)
the evidence is evidence of an opinion of the person that:
(c)
(2)
(i)
is wholly or substantially based on that knowledge; and
(ii)
could substantially affect the assessment of the
credibility of the witness; and
the court gives leave to adduce the evidence.
To avoid doubt, and without limiting subsection (1):
(a)
a reference in that subsection to specialised knowledge
includes a reference to specialised knowledge of child
development and child behaviour (including specialised
knowledge of the impact of sexual abuse on children and their
behaviour during and following the abuse); and
(b)
a reference in that subsection to an opinion of a person
includes, if the person has specialised knowledge of that kind,
a reference to an opinion relating to either or both of the
following:
(i)
the development and behaviour of children generally;
(ii)
the development and behaviour of children who have
been victims of sexual offences, or offences similar to
sexual offences.
118
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 108C Exception – evidence of persons with specialised
knowledge
The credibility rule does not apply to witnesses with ‘specialised knowledge
based on the persons training study or experience’. This provides an
exception for expert opinion evidence that could substantially affect the
assessment of the credibility of a witness. This could be regarding, for
example: cognitive impairment; lack of capacity to observe; evidence on
effects of family violence where it is relevant to credibility of a witness; expert
opinion evidence on ‘hysterical and unstable nature of the alleged victim of an
assault’; or evidence on the behaviour and development of children and the
long term effects of family violence.
This evidence can only be adduced with leave of the court. The purpose of
the clause is to permit expert opinion evidence in situations where it would be
relevant to the fact-finding process (for example, to prevent misinterpretation
of witness behaviour or inappropriate inferences being drawn from that
behaviour).
Subclause (2) clarifies that specialist knowledge includes specialised
knowledge of child development and behaviour. This clause complements
clause 79.
This clause was inserted in accordance with the recommendations of ALRC
102.
If evidence is relevant for some reason other than credibility then it is not
caught by the definition of credibility in 101A, as it is not ‘only relevant
because it affects the assessment of the credibility of the witness or person’.
Therefore it is not ‘credibility evidence’.
That being so, evidence of a prior conviction for dishonesty for the purposes
of coincidence or tendency under Part 3.6 is able to be also used in respect of
the credibility of the defendant as a witness. This is of course subject to the
general discretion to limit the use of evidence in clause 136.
In practice the difference between evidence relevant to credit and evidence
relevant to a fact in issue is often indistinct, but the distinction is regarded as
necessary to prevent a trial being burdened with the side issues that would
arise if parties could investigate matters whose only real probative value was
that they tended to show the veracity or falseness of the witness who is giving
the evidence. Sometimes, however, the credibility of a witness is decisive as
to the facts in issue. Accordingly, it is irrational to draw a rigid distinction
between matters of credit and matters going to the facts in issue.
Although ‘fresh complaint’ evidence in sexual assault cases is not specifically
retained by the UEA clause 108(3)(b) allows evidence of a prior consistent
statement if ‘it is or will be suggested (either expressly or by implication) that
evidence given by the witness has been fabricated or reconstructed (whether
deliberately or otherwise) or is the result of a suggestion; and the court gives
119
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
leave to adduce the evidence of the prior consistent statement.’ It has been
accepted by the NSWCCA that a suggestion made in cross-examination in
committal proceedings is sufficient to enliven the clause. Evidence of recent
complaint can also be given under clause 66 (Exception to the hearsay rule).
Part 3.8
Character
This Part only applies to criminal proceedings. Clause 110 allows the defence
to adduce evidence of the defendant’s good character, either generally or in a
particular respect, and the prosecution may then rebut that evidence.
Evidence of good character by way of reputation, tendency or credibility can
be introduced without the strict tests otherwise required for hearsay, opinion,
tendency and credibility evidence.
Clause 111 allows the defendant to introduce expert evidence of another
defendant’s character in the same proceedings, without the application of the
hearsay or tendency rules, and that second defendant may adduce rebuttal
evidence. This is the same as the common law. The rebuttal evidence in
clauses 110 and 111 also are free of the strict tests for hearsay, opinion,
tendency and credibility evidence.
Although leave is not required for the prosecution to adduce rebuttal evidence
under clause 110, leave must be obtained before cross-examination of the
defendant by the prosecution or another defendant about matters of character
under clauses 110 and 111. (See clauses 112 and 104).
Clause 109 Application
This Part applies only in a criminal proceeding.
Clause 109 Application
This clause establishes that this Part applies only in a criminal proceeding.
Clause 110 Evidence about character of accused persons
(1)
The hearsay rule, the opinion rule, the tendency rule and the
credibility rule do not apply to evidence adduced by a defendant to
prove (directly or by implication) that the defendant is, either
generally or in a particular respect, a person of good character.
(2)
If evidence adduced to prove (directly or by implication) that a
defendant is generally a person of good character has been
admitted, the hearsay rule, the opinion rule, the tendency rule and
the credibility rule do not apply to evidence adduced to prove
(directly or by implication) that the defendant is not generally a
person of good character.
120
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(3)
If evidence adduced to prove (directly or by implication) that a
defendant is a person of good character in a particular respect has
been admitted, the hearsay rule, the opinion rule, the tendency rule
and the credibility rule do not apply to evidence adduced to prove
(directly or by implication) that the defendant is not a person of
good character in that respect.
Clause 110 Evidence about character of accused persons
This clause provides exceptions to the hearsay rule, the opinion rule, the
tendency rule and the credibility rule, for evidence adduced by a defendant
about his or her own good character, and evidence adduced to rebut such
evidence.
Under common law rebuttal evidence is allowed solely for the limited purpose
of rebutting the defendant’s claim of good character. It is arguable, however,
that as a matter of statutory construction, if evidence is allowed under clause
110(1) to prove lack of guilt (by evidence of good character), then evidence
adduced in rebuttal under clause 110(2) or 110(3) is admissible to prove guilt.
The likelihood that rebuttal evidence will negatively impact on the defendant’s
case will require the evidence to have a high degree of probity to avoid
exclusion under the discretionary provisions of Part 3.11.
Cross-examination of the defendant regarding his or her criminal history is still
a vexed question anyway, and the common law resistance to allowing
evidence of prior criminal history is still relevant in guiding the exercise of the
clause 104(2) discretion.
Clause 111 Evidence about character of co-accused
(1)
(2)
The hearsay rule and the tendency rule do not apply to evidence of
a defendant's character if:
(a)
the evidence is evidence of an opinion about the defendant
adduced by another defendant; and
(b)
the person whose opinion it is has specialised knowledge
based on the person's training, study or experience; and
(c)
the opinion is wholly or substantially based on that knowledge.
If such evidence has been admitted, the hearsay rule, the opinion
rule and the tendency rule do not apply to evidence adduced to
prove that that evidence should not be accepted.
Clause 111 Evidence about character of co-accused
This clause provides an exception to the hearsay rule and tendency rule for
expert opinion evidence about a defendant's character adduced by a
co-accused. This is again subject to the court’s discretion under clause 135
121
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(clause 137 is for evidence adduced by the prosecution).
Clause 112 Leave required to cross-examine about character of accused
or co-accused
A defendant must not be cross-examined about matters arising out of
evidence of a kind referred to in this Part unless the court gives leave.
Clause 112 Leave required to cross-examine about character of accused
or co-accused
Leave must be obtained to cross-examine a defendant about matters set out
in Part 3.8. This clause amends section 112 of the UEA to correct a minor
drafting inconsistency between subsection 104(2) and section 112. The
words ‘is to be’ in clause 112 are replaced with ‘must not be’.
Part 3.9
Identification evidence
Note for Part 3.9
Identification evidence is defined in the Dictionary.
This Part changes the common law regarding the admissibility of identification
evidence in a criminal trial. It applies only in criminal proceedings and to a
certain extent is stricter than the common law.
Clause 113 Application of Part
This Part applies only in a criminal proceeding.
Clause 113 Application of Part
This clause establishes that this Part applies only in criminal proceedings.
Clause 114 Exclusion of visual identification evidence
(1)
In this section:
visual identification evidence means identification evidence
relating to an identification based wholly or partly on what a person
saw but does not include picture identification evidence.
(2)
Visual identification evidence adduced by the prosecutor is not
admissible unless:
(a)
an identification parade that included the defendant was held
before the identification was made; or
122
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(b)
it would not have been reasonable to have held such a
parade; or
(c)
the defendant refused to take part in such a parade;
and the identification was made without the person who made it
having been intentionally influenced to identify the defendant.
(3)
Without limiting the matters that may be taken into account by the
court in determining whether it was reasonable to hold an
identification parade, it is to take into account:
(a)
the kind of offence, and the gravity of the offence, concerned;
and
(b)
the importance of the evidence; and
(c)
the practicality of holding an identification parade having
regard, among other things:
(d)
(i)
if the defendant failed to cooperate in the conduct of the
parade – to the manner and extent of, and the reason
(if any) for, the failure; and
(ii)
in any case – to whether the identification was made at
or about the time of the commission of the offence; and
the appropriateness of holding an identification parade having
regard, among other things, to the relationship (if any)
between the defendant and the person who made the
identification.
(4)
It is presumed that it would not have been reasonable to have held
an identification parade if it would have been unfair to the defendant
for such a parade to have been held.
(5)
If:
(a)
the defendant refused to take part in an identification parade
unless an Australian legal practitioner or legal counsel acting
for the defendant, or another person chosen by the defendant,
was present while it was being held; and
(b)
there were, at the time when the parade was to have been
conducted, reasonable grounds to believe that it was not
reasonably practicable for such an Australian legal practitioner
or legal counsel or person to be present;
it is presumed that it would not have been reasonable to have held
an identification parade at that time.
123
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(6)
In determining whether it was reasonable to have held an
identification parade, the court is not to take into account the
availability of pictures or photographs that could be used in making
identifications.
Clause 114 Exclusion of visual identification evidence
This clause provides a general exclusionary rule for visual identification
evidence, and broadly reflects the common law. Visual identification evidence
means evidence of identification based wholly or partly on what a person saw
but does not include picture identification evidence. ‘Visual identification
evidence’ is not admissible without an identification parade having been held,
unless it would have not been reasonable, or would have been impractical to
have held such a parade, or if the defendant refused to take part. This clause
applies even to some ‘recognition evidence’.
Subclause (3) sets out some of the matters that a court may take into account
in determining whether it was reasonable to have held an identification
parade. These include the type and gravity of the offence, the importance of
the evidence and the practicality of holding such a parade (including, if the
defendant failed to cooperate, and the manner and reason for the failure).
Under subclauses (4) and (5), it is to be presumed that it would not have been
reasonable to hold an identification parade if it would have been unfair to the
defendant to hold the parade or the defendant refused to take part in the
parade unless an Australian legal practitioner or other party was present and
there were reasonable grounds to believe this was not reasonably practicable.
Subclause (6) stipulates that in determining whether it was reasonable to hold
a parade, the court is not to take into account availability of pictures or
photographs that could be used in making identifications.
Sometimes, however, the fact that a witness has recognised the defendant
has led the judge to decide it would not have been reasonable or appropriate
to have held a parade. The impracticality of holding a parade might include
such things as logistical difficulties or time taken to organise a parade, but just
because it is unreasonable or impractical at one time does not mean it will be
at another. Impracticality must not include the fact that police had pictures or
photographs that could be used (clause 114(6)).
Visual identification evidence does not include security footage or
identification by a tracker dog, aural, DNA or fingerprint identification.
Importantly it does not include ‘picture identification evidence’.
Clause 115 Exclusion of evidence of identification by pictures
(1)
In this section:
picture identification evidence means identification evidence
124
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
relating to an identification made wholly or partly by the person who
made the identification examining pictures kept for the use of police
officers.
(2)
Picture identification evidence adduced by the prosecutor is not
admissible if the pictures examined suggest that they are pictures
of persons in police custody.
(3)
Subject to subsection (4), picture identification evidence adduced
by the prosecutor is not admissible if:
(4)
(5)
(6)
(a)
when the pictures were examined, the defendant was in the
custody of a police officer of the police force investigating the
commission of the offence with which the defendant has been
charged; and
(b)
the picture of the defendant that was examined was made
before the defendant was taken into that police custody.
Subsection (3) does not apply if:
(a)
the defendant's appearance had changed significantly
between the time when the offence was committed and the
time when the defendant was taken into that custody; or
(b)
it was not reasonably practicable to make a picture of the
defendant after the defendant was taken into that custody.
Picture identification evidence adduced by the prosecutor is not
admissible if, when the pictures were examined, the defendant was
in the custody of a police officer of the police force investigating the
commission of the offence with which the defendant has been
charged, unless:
(a)
the defendant refused to take part in an identification parade;
or
(b)
the defendant's appearance had changed significantly
between the time when the offence was committed and the
time when the defendant was taken into that custody; or
(c)
it would not have been reasonable to have held an
identification parade that included the defendant.
Section 114(3), (4), (5) and (6) apply in determining, for the
purposes of subsection (5)(c) of this section, whether it would have
been reasonable to have held an identification parade.
125
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(7)
If picture identification evidence adduced by the prosecutor is
admitted into evidence, the judge must, on the request of the
defendant:
(a)
if the picture of the defendant was made after the defendant
was taken into that custody – inform the jury that the picture
was made after the defendant was taken into that custody; or
(b)
otherwise – warn the jury that they must not assume that the
defendant has a criminal record or has previously been
charged with an offence.
Note for subsection (7)
Sections 116 (Directions to jury) and 165 (Unreliable evidence) also
deal with warnings about identification evidence.
(8)
This section does not render inadmissible picture identification
evidence adduced by the prosecutor that contradicts or qualifies
picture identification evidence adduced by the defendant.
(9)
This section applies in addition to section 114.
(10) In this section:
(a)
a reference to a picture includes a reference to a photograph;
and
(b)
a reference to making a picture includes a reference to taking
a photograph.
Clause 115 Exclusion of evidence of identification by pictures
Clause 115 sets out the rules governing the admissibility of visual
identification evidence where the identification was made wholly or partly after
examining pictures (defined to include photographs) kept for use by police
officers. It does not include surveillance security or video footage.
Picture identification evidence is inadmissible if the pictures suggest that the
person is in police custody (for example by showing an identification number),
or if the person is actually in police custody and the photo was taken before
that custody. This clause is designed to encourage police officers to provide
current photographs for the purpose of identification. However, there are
exceptions to this exclusion.
Picture identification evidence is, however, admissible if the person was in
police custody and (a) the person had declined an identification parade, or (b)
his or her appearance had changed after the offence had been committed, or
(c) it was not reasonable to hold one. Both picture identification evidence and
visual identification evidence may still be excluded under the discretionary
powers of the Bill, particularly clauses 137 and 138.
126
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 116 Directions to jury
(1)
(2)
If identification evidence has been admitted, the judge is to inform
the jury:
(a)
that there is a special need for caution before accepting
identification evidence; and
(b)
of the reasons for that need for caution, both generally and in
the circumstances of the case.
It is not necessary that a particular form of words be used in so
informing the jury.
Clause 116 Directions to Jury
If identification evidence is admitted the judge must give directions to the jury
as required by clause 116. The direction is of the special need for caution
before accepting the evidence and the reasons for that need for caution, both
generally and in the circumstances of the case. This provision reflects the
common law, although the direction must be given even if not requested. The
warning is generally formulated as was the warning in Domican v The Queen
(1992) 173 CLR 555, although there is no mandatory method of expression.
The warning will depend on ‘the issues in the case as a whole’.
Warnings against evidence that may be unreliable are also required by
clause 165.
Part 3.10
Privileges
This Part sets out evidence that is protected from disclosure on grounds of
privilege or for public policy considerations, and deals with confidential and
privileged communications and documents. It includes client legal privilege,
religious confessions (which were not protected at all under the common law,
although section 12 of the Evidence Act 1939 (NT) protected communications
to clergymen and medical practitioners), the privilege against self
incrimination, and public interest privilege.
The UEA is concerned with the admissibility of evidence at trial, and the
provisions of this part do not apply to pre-trial evidence gathering such as
discovery and subpoenas. Civil procedure rules in NSW have been amended
to apply Part 3.10 regarding discovery interrogatories, subpoenas, oral
examinations and notices to produce, but the common law still applies to
criminal proceedings. Any consideration of the operation of the privileges in
relation to ancillary processes should begin with a review of the current rules
of the particular court.
127
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Division 1
Client legal privilege
Clause 117 Definitions
(1)
In this Division:
client includes the following:
(a)
a person or body who engages a lawyer to provide legal
services or who employs a lawyer (including under a contract
of service);
(b)
an employee or agent of a client;
(c)
an employer of a lawyer if the employer is:
(i)
the Commonwealth or a State or Territory; or
(ii)
a body established by a law of the Commonwealth or a
State or Territory;
(d)
if, under a law of a State or Territory relating to persons of
unsound mind, a manager, committee or person (however
described) is for the time being acting in respect of the person,
estate or property of a client – a manager, committee or
person so acting;
(e)
if a client has died – a personal representative of the client;
(f)
a successor to the rights and obligations of a client, being
rights and obligations in respect of which a confidential
communication was made.
confidential communication means a communication made in
such circumstances that, when it was made:
(a)
the person who made it; or
(b)
the person to whom it was made;
was under an express or implied obligation not to disclose its
contents, whether or not the obligation arises under law.
confidential document means a document prepared in such
circumstances that, when it was prepared:
(a)
the person who prepared it; or
(b)
the person for whom it was prepared;
128
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
was under an express or implied obligation not to disclose its
contents, whether or not the obligation arises under law.
lawyer means:
(a)
an Australian lawyer; and
(b)
an Australian-registered foreign lawyer; and
(c)
an overseas-registered foreign lawyer or a natural person
who, under the law of a foreign country, is permitted to
engage in legal practice in that country; and
(d)
an employee or agent of a lawyer referred to in paragraph (a),
(b) or (c).
party includes the following:
(2)
(a)
an employee or agent of a party;
(b)
if, under a law of a State or Territory relating to persons of
unsound mind, a manager, committee or person (however
described) is for the time being acting in respect of the person,
estate or property of a party – a manager, committee or
person so acting;
(c)
if a party has died – a personal representative of the party;
(d)
a successor to the rights and obligations of a party, being
rights and obligations in respect of which a confidential
communication was made.
A reference in this Division to the commission of an act includes a
reference to a failure to act.
Clause 117 Definitions
This clause defines, for the purposes of the Division, the terms client,
confidential communication, confidential document, lawyer and party.
The definition of client has a wide meaning, including, for example,
government employees, and includes a person or body who engages a lawyer
to provide legal services or who employs a lawyer (including under a contract
of service), and an employee or agent of a client. Under this definition there is
no distinction between government and private lawyers. A contract or retainer
is not necessary.
Accordingly, subclause (1) defines lawyer for the purposes of client legal
privilege to include ‘Australian lawyers’, that is, those who are admitted to
practice but do not necessarily have a current practising certificate.
129
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
It is intended that the definition of lawyer for the client legal privilege
provisions reflect the breadth of the concept in the case law. The policy of the
privilege does not justify its restriction to those with a practising certificate,
particularly since many lawyers may provide legal advice or professional legal
services in various jurisdictions. It is the substance of the relationship that is
important, rather than a strict requirement that the lawyer hold a practising
certificate. Employees and agents of lawyers are also included.
This clause is not intended to affect the common law concept of independent
legal advice. A practising certificate is an important indicator, but not
conclusive on the issue of whether the legal advice is sufficiently independent
to constitute legal advice under the requirements of the UEA.
The broader definition in this clause includes a person who is admitted in a
foreign jurisdiction and reflects the reasoning of the Full Federal Court in
Kennedy v Wallace (2004) 142 FCR 185. The rationale of client legal
privilege is to serve the public interest in the administration of justice and its
status as a substantive right means it should not be limited to advice obtained
only from Australian lawyers.
Clause 118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds
that adducing the evidence would result in disclosure of:
(a)
a confidential communication made between the client and a
lawyer; or
(b)
a confidential communication made between 2 or more lawyers
acting for the client; or
(c)
the contents of a confidential document (whether delivered or not)
prepared by the client, lawyer or another person;
for the dominant purpose of the lawyer, or one or more of the lawyers,
providing legal advice to the client.
Clause 118 Legal Advice
Protection is provided from disclosure in court for:
(a)
confidential communications passing between the client and his or her
lawyers; or
(b)
communication between the client's lawyers; or
(c)
the contents of a confidential document prepared by the client, lawyer or
another person;
130
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
which are made for the dominant purpose of the lawyer (or lawyers) providing
legal advice to the client.
In ALRC 102 it was concluded that 118(c) should be amended by replacing
the words "client or a lawyer" with "client, lawyer or another person". This was
to reflect developments in the common law, and extends the legal advice
privilege to confidential documents prepared by someone other than the client
or lawyer (such as an accountant or consultant) for the dominant purpose of
the lawyer providing legal advice to the client.
Legal advice, with the dominant purpose of a lawyer providing legal advice, is
privileged. This includes government as well as private lawyers and includes
in house counsel. The two rationales for this rule are (i) to enhance the
functioning of the adversarial system, and (ii) the frankness allowed by the
rule better enables lawyers to dissuade their clients from breaking the law.
This privilege extends to information provided by a third party to the client or
lawyer for the dominant purpose of providing legal advice, but not to
communications with a third party.
Much, of course, depends on the definition of ‘lawyer’, ‘confidential
communication’, ‘party’, and ‘client’, which are defined in clause 117, and also
the further definitions in the decided cases of those terms as well as the terms
‘document’, ‘disclosure’, ‘communication’, ‘purpose’ and ‘legal advice’. The
court must consider ‘the surrounding facts and circumstances, particularly
previous dealings between the parties’.
The more liberal ‘dominant purpose’ test rather than the ‘sole purpose’ test is
applied to the provision reflecting the common law position proposed by
Barwick CJ in Grant v Downes. (Although this test was rejected by the
majority in that case who opted for the ‘sole purpose’ test).
A communication or document will be confidential if either the person who
made it or the person to whom it was made ‘was under an express or implied
obligation not to disclose its contents whether or not the obligation arises
under law’. This is not to be read narrowly and can extend to an unspoken
obligation, and to an ethical, moral or social obligation. The presence,
however, of a third party at the communication may indicate that the
communication was not intended to be confidential. This has been held under
both the UEA and at common law.
131
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds
that adducing the evidence would result in disclosure of:
(a)
a confidential communication between the client and another
person, or between a lawyer acting for the client and another
person, that was made; or
(b)
the contents of a confidential document (whether delivered or not)
that was prepared;
for the dominant purpose of the client being provided with professional
legal services relating to an Australian or overseas proceeding (including
the proceeding before the court), or an anticipated or pending Australian
or overseas proceeding, in which the client is or may be, or was or might
have been, a party.
Clause 119 Litigation
Clause 119 parallels clause 118, and is commonly called ‘the litigation
privilege’. It covers confidential communications and documents made or
prepared for the dominant purpose of a lawyer providing legal services for
litigation, and extends to confidential communications between lawyer, client
and ‘another person’. Potential witnesses fall in this clause.
Clause 120 Unrepresented parties
Evidence is not to be adduced if, on objection by a party who is not
represented in the proceeding by a lawyer, the court finds that adducing
the evidence would result in disclosure of:
(a)
a confidential communication between the party and another
person; or
(b)
the contents of a confidential document (whether delivered or not)
that was prepared, either by or at the direction or request of, the
party;
for the dominant purpose of preparing for or conducting the proceeding.
Note for section 0
The Commonwealth Act, NSW Act and Victorian Act formerly contained
a subsection (2) of this section. The subsection has been repealed.
132
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 120: Unrepresented parties
This clause helps reduce the disadvantage the unrepresented litigant has in
the adversarial system, by extending the privilege to communications with
third parties prepared in anticipation of litigation by a litigant in person.
Clause 121 Loss of client legal privilege – generally
(1)
This Division does not prevent the adducing of evidence relevant to
a question concerning the intentions, or competence in law, of a
client or party who has died.
(2)
This Division does not prevent the adducing of evidence if, were the
evidence not adduced, the court would be prevented, or it could
reasonably be expected that the court would be prevented, from
enforcing an order of an Australian court.
(3)
This Division does not prevent the adducing of evidence of a
communication or document that affects a right of a person.
Clause 121 Loss of client legal privilege: generally
This provision contains exceptions to the client legal privilege rule. These are:
(1) the intentions and legal competency of deceased parties;
(2) evidence that if not adduced would or could reasonably be expected to
prevent the enforcement of an order in an Australian Court; and
(3) a communication affecting the rights of a person.
It has been held that sub clause (3) applies only to communications that affect
rights directly, rather than those that are merely evidentiary as to rights
created or affected otherwise.
The privilege will be lost when the client or party has died and the evidence is
relevant to the question of the client's or party's intentions or competence in
law. It will also be lost if the result of not admitting the evidence would be that
the court would be prevented from enforcing an order of an Australian court.
The clause does not prevent the adducing of evidence of a communication or
document that affects a right of a person.
The burden of proof is on the party wishing to persuade the court that the
privilege is lost.
133
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 122 Loss of client legal privilege – consent and related matters
(1)
This Division does not prevent the adducing of evidence given with
the consent of the client or party concerned.
(2)
Subject to subsection (5), this Division does not prevent the
adducing of evidence if the client or party concerned has acted in a
way that is inconsistent with the client or party objecting to the
adducing of the evidence because it would result in a disclosure of
a kind referred to in section 118, 119 or 120.
(3)
Without limiting subsection (2), a client or party is taken to have so
acted if:
(a)
the client or party knowingly and voluntarily disclosed the
substance of the evidence to another person; or
(b)
the substance of the evidence has been disclosed with the
express or implied consent of the client or party.
(4)
The reference in subsection (3)(a) to a knowing and voluntary
disclosure does not include a reference to a disclosure by a person
who was, at the time of the disclosure, an employee or agent of the
client or party or of a lawyer of the client or party unless the
employee or agent was authorised by the client, party or lawyer to
make the disclosure.
(5)
A client or party is not taken to have acted in a manner inconsistent
with the client or party objecting to the adducing of the evidence
merely because:
(a)
the substance of the evidence has been disclosed:
(i)
in the course of making a confidential communication or
preparing a confidential document; or
(ii)
as a result of duress or deception; or
(iii)
under compulsion of law; or
(iv) if the client or party is a body established by, or a person
holding an office under, an Australian law – to the
Minister, or the Minister of the Commonwealth, the State
or Territory, administering the law, or part of the law,
under which the body is established or the office is held;
or
134
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(6)
(b)
of a disclosure by a client to another person if the disclosure
concerns a matter in relation to which the same lawyer is
providing, or is to provide, professional legal services to both
the client and the other person; or
(c)
of a disclosure to a person with whom the client or party had,
at the time of the disclosure, a common interest relating to the
proceeding or an anticipated or pending proceeding in an
Australian court or a foreign court.
This Division does not prevent the adducing of evidence of a
document that a witness has used to try to revive the witness's
memory about a fact or opinion or has used as mentioned in
section 32 (Attempts to revive memory in court) or 33 (Evidence
given by police officers).
Clause 122 Loss of Client legal privilege: Consent and related matters
Clause 122 is designed to align the Bill more closely with the common law test
for loss of privilege as set out in Mann v Carnell (1990) 201 CLR 1. A client or
party can consent to the (privileged) evidence in question being adduced.
Disclosure may justify a conclusion that the privilege is lost. The party can be
‘taken to have’ acted in a way that is inconsistent with the maintenance of the
privilege, by reason of knowingly disclosing the privileged material.
Clause 122 provides that client legal privilege is lost by consent or by knowing
and voluntary disclosure of the substance of the evidence. However, this
clause provides that evidence may be adduced where a client or party has
acted in a manner inconsistent with the maintenance of the privilege.
Clause 122 is concerned with the behaviour of the holder of the privilege, as
opposed to the intention of the holder of the privilege. The intention of this
clause is that the privilege should not extend beyond what is necessary, and
that voluntary publication by the client should end the privilege. The addition
of the inconsistency criterion for waiver at subclause (5) also gives the court
greater flexibility to consider all the circumstances of the case.
The burden of proof is ion the party trying to persuade the court that the
privilege is lost.
Clause 123 Loss of client legal privilege – defendants
In a criminal proceeding, this Division does not prevent a defendant from
adducing evidence unless it is evidence of:
(a)
a confidential communication made between an associated
defendant and a lawyer acting for that person in connection with the
prosecution of that person; or
135
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(b)
the contents of a confidential document prepared by an associated
defendant or by a lawyer acting for that person in connection with
the prosecution of that person.
Note for section 123
Associated defendant is defined in the Dictionary.
Clause 123 Loss of client legal privilege - defendants
A defendant in a criminal proceeding can adduce evidence of confidential
communications and documents, except such communications between, or
documents prepared by, an associated defendant (a defined term) or his or
her lawyer.
This provision has the effect that a privilege created by clauses 118-120, is
lost if the evidence of that communication is adduced by a defendant, unless
the evidence derives from an associated defendant. This is different from the
common law.
Clause 124 Loss of client legal privilege – joint clients
(1)
This section only applies to a civil proceeding in connection with
which 2 or more parties have, before the commencement of the
proceeding, jointly retained a lawyer in relation to the same matter.
(2)
This Division does not prevent one of those parties from adducing
evidence of:
(a)
a communication made by any one of them to the lawyer; or
(b)
the contents of a confidential document prepared by or at the
direction or request of any one of them;
in connection with that matter.
Clause 124 Loss of client legal privilege: joint clients
In a civil proceeding involving joint clients of a lawyer, one of the joint clients
can adduce evidence concerning the confidential communications and
documents made by any of the joint clients.
This has the effect that privilege is lost where two or more parties have jointly
retained a lawyer in relation to the same matter, and evidence of a
communication made by any of the parties to the lawyer, or a document
prepared by or for any one of the parties to the lawyer, is adduced by one of
the parties.
136
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 125 Loss of client legal privilege – misconduct
(1)
(2)
This Division does not prevent the adducing of evidence of:
(a)
a communication made or the contents of a document
prepared by a client or lawyer (or both), or a party who is not
represented in the proceeding by a lawyer, in furtherance of
the commission of a fraud or an offence or the commission of
an act that renders a person liable to a civil penalty; or
(b)
a communication or the contents of a document that the client
or lawyer (or both), or the party, knew or ought reasonably to
have known was made or prepared in furtherance of a
deliberate abuse of a power.
For the purposes of this section, if the commission of the fraud,
offence or act, or the abuse of power, is a fact in issue and there
are reasonable grounds for finding that:
(a)
the fraud, offence or act, or the abuse of power, was
committed; and
(b)
a communication was made or document prepared in
furtherance of the commission of the fraud, offence or act or
the abuse of power;
the court may find that the communication was so made or the
document so prepared.
(3)
In this section:
power means a power conferred by or under an Australian law.
Clause 125 Loss of client legal privilege: misconduct
Client legal privilege is lost for confidential communications made and
documents prepared in furtherance of a fraud, an offence, or an act that
renders a person liable to a civil penalty or a deliberate abuse of statutory
power.
Subclause (2) provides that, if the commission of a fraud, offence or act
referred to in subclause (1) is a fact in issue in the proceeding and there are
reasonable grounds for finding that it was committed, and for finding that the
communication or document was made or prepared in the furtherance of the
commission of the fraud, offence or act, the court may find that the
communication was so made or the document so prepared.
To a significant extent this is the same as the common law, and assistance
has been gained from the common law cases. The range of fraud extends to
‘sharp practices’ of the kind often associated with equitable fraud, breach of
trust, fraudulent conspiracy, trickery and sham contrivances’.
137
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 126 Loss of client legal privilege – related communications and
documents
If, because of the application of section 121, 122, 123, 124 or 125, this
Division does not prevent the adducing of evidence of a communication
or the contents of a document, those sections do not prevent the
adducing of evidence of another communication or document if it is
reasonably necessary to enable a proper understanding of the
communication or document.
Example for section 126
A lawyer advises his client to understate her income for the previous
year to evade taxation because of her potential tax liability "as set out in
my previous letter to you dated 11 August 1994". In proceedings against
the taxpayer for tax evasion, evidence of the contents of the letter dated
11 August 1994 may be admissible (even if that letter would otherwise
be privileged) to enable a proper understanding of the second letter.
Clause 126 Loss of client legal privilege: related communications and
documents
Where client legal privilege does not prevent evidence being adduced of a
communication or a document, it also does not prevent evidence being
adduced of another communication or document reasonably necessary to
enable a proper understanding of the first communication or document.
An example is included in the Bill to illustrate the intention of this clause.
The clause does not specify whose understanding is to be considered, but
Sackville J in the Federal Court has said that the phrase ‘reasonably
necessary’ implies there is an objective standard to the understanding and the
court must take into account ‘the forensic purpose for which it is proposed to
use the document voluntarily disclosed’.
Division 1A
Professional confidential relationship privilege
Note for Part 3.10, Division 1A
The Commonwealth Act and NSW Act include this Division.
Division 1A Professional confidential relationship privilege
The Commonwealth and NSW Acts contain this division.
Victorian Acts do not contain this Division.
Division 2
The NT and
Other privileges
Clause 127 Religious confessions
(1)
A person who is or was a member of the clergy of any church or
138
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
religious denomination is entitled to refuse to divulge that a religious
confession was made, or the contents of a religious confession
made, to the person when a member of the clergy.
(2)
Subsection (1) does not apply if the communication involved in the
religious confession was made for a criminal purpose.
(3)
This section applies even if an Act provides:
(4)
(a)
that the rules of evidence do not apply or that a person or
body is not bound by the rules of evidence; or
(b)
that a person is not excused from answering any question or
producing any document or other thing on the ground of
privilege or any other ground.
In this section:
religious confession means a confession made by a person to a
member of the clergy in the member's professional capacity
according to the ritual of the church or religious denomination
concerned.
Clause 127 Religious confessions
Members of the clergy may refuse to divulge both the contents of religious
confessions made to them in their professional capacity and the fact that they
have been made. The entitlement applies even if an Act provides that the
rules of evidence do not apply, that a person or body is not bound by the rules
of evidence, or that a person is not excused from answering a question or
producing any document or thing because of privilege or otherwise.
Subclause (2) provides that the privilege does not apply if the communication
involved was made for a criminal purpose.
This privilege is based on an acknowledgment that some religions have a
ritual of confessing one's sins to a member of the clergy as God's human
intermediary, in circumstances where the member of the clergy is bound to
keep the contents of the confession confidential. The privilege acknowledges
that members of clergy, whose faith requires absolute confidentiality of a
confession, would be placed in an intolerable situation if required to choose
between compliance with a strict provision of their faith and an order of a
court. Consequently, this privilege promotes the right to freedom of religion
for the clergy of religious denominations which include the ritual of confession.
The wishes of the person who made the confession, as to whether it be
divulged, are irrelevant.
139
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 128 Privilege in respect of self-incrimination in other
proceedings
(1)
This section applies if a witness objects to giving particular
evidence, or evidence on a particular matter, on the ground that the
evidence may tend to prove that the witness:
(a)
has committed an offence against or arising under an
Australian law or a law of a foreign country; or
(b)
is liable to a civil penalty.
(2)
The court must determine whether or not there are reasonable
grounds for the objection.
(3)
If the court determines that there are reasonable grounds for the
objection, the court is to inform the witness:
(a)
that the witness need not give the evidence unless required by
the court to do so under subsection (4); and
(b)
that the court will give a certificate under this section if:
(c)
(4)
(i)
the witness willingly gives the evidence without being
required to do so under subsection (4); or
(ii)
the witness gives the evidence after being required to do
so under subsection (4); and
of the effect of such a certificate.
The court may require the witness to give the evidence if the court
is satisfied that:
(a)
the evidence does not tend to prove that the witness has
committed an offence against or arising under, or is liable to a
civil penalty under, a law of a foreign country; and
(b)
the interests of justice require that the witness give the
evidence.
(5)
If the witness either willingly gives the evidence without being
required to do so under subsection (4), or gives it after being
required to do so under that subsection, the court must cause the
witness to be given a certificate under this section in respect of the
evidence.
(6)
The court is also to cause a witness to be given a certificate under
this section if:
(a)
the objection has been overruled; and
140
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(b)
(7)
after the evidence has been given, the court finds that there
were reasonable grounds for the objection.
In any proceeding in a Territory court or before any person or body
authorised by a law of the Territory, or by consent of parties, to
hear, receive and examine evidence:
(a)
evidence given by a person in respect of which a certificate
under this section has been given; and
(b)
any information, document or thing obtained as a direct or
indirect consequence of the person having given evidence;
cannot be used against the person. However, this does not apply to
a criminal proceeding in respect of the falsity of the evidence.
Note for subsection (7)
This subsection differs from section 128(7) of the Commonwealth
Act, NSW Act and Victorian Act in relation to the reference to a
"Territory court".
(8)
Subsection (7) has effect despite any challenge, review, quashing
or calling into question on any ground of the decision to give, or the
validity of, the certificate concerned.
(9)
If a defendant in a criminal proceeding for an offence is given a
certificate under this section, subsection (7) does not apply in a
proceeding that is a retrial of the defendant for the same offence or
a trial of the defendant for an offence arising out of the same facts
that gave rise to that offence.
(10) In a criminal proceeding, this section does not apply in relation to
the giving of evidence by a defendant, being evidence that the
defendant:
(a)
did an act the doing of which is a fact in issue; or
(b)
had a state of mind the existence of which is a fact in issue.
(11) A reference in this section to doing an act includes a reference to
failing to act.
Notes for section 128
1
Bodies corporate cannot claim this privilege. See section 187.
2
Clause 3 of Part 2 of the Dictionary sets out what is a civil
penalty.
3
The Commonwealth Act includes additional subsections (12)
to (15). The subsections give effect to certificates in relation to
self-incriminating evidence under this Act in proceedings in
141
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
federal and Australian Capital Territory courts and in Territory
prosecutions for Commonwealth and Australian Capital
Territory offences.
4
Clause 128
proceedings
Subsections (8) and (9) were inserted as a response to the
decision of the High Court of Australia in Cornwell v The
Queen (2007) 271 CLR 260.
Privilege
in
respect
of
self-incrimination
in
other
If a witness objects to giving evidence on the basis of self incrimination, and if
the court considers that ‘in the interests of justice’ the evidence should be
given, the witness is required to give the evidence but is given a certificate.
The certificate guarantees the witness against the evidence (and any
evidence, information or document, obtained as a consequence of that person
giving evidence), being used against the person. The provision only applies
to evidence given in court.
The court must determine whether there are reasonable grounds for the
objection and if it finds that there are, the court is to advise the witness that
they do not need to give the evidence unless required to do so by the court.
In such circumstances, where the witness gives the evidence, whether
required to by the court or otherwise, the court is to give the witness a
certificate.
The court can only require the witness to give the evidence if the evidence
does not tend to prove the witness has committed an offence or may be liable
to a civil penalty under the law of a foreign country and the interests of justice
require that the witness give the evidence. A certificate makes the evidence
(and evidence obtained as a consequence of its being given) inadmissible in
any Australian proceeding, except a criminal proceeding in respect of the
falsity of the evidence.
Subclauses (8) and (9) respond to two issues considered in the decision of
the High Court of Australia in Cornwell v The Queen (2007) 131 CLR 260.
The issues concerned the applicability of the certificate to a retrial and the
operation of a certificate in circumstances where the validity of the certificate
has been called into question.
Subclause (8) provides that a certificate has effect regardless of the outcome
of any challenge to its validity. This subclause has been included on the basis
that the granting of a certificate under clause 128 is not the same as any other
evidential ruling. To ensure that the policy of clause 128 is effective, the
witness must be certain of being able to rely on that certificate in future
proceedings.
Subclause (9) provides that the operation of the certificate does not apply to a
proceeding which is a retrial for the same offence or a trial for an offence
arising out of the same facts that gave rise to the original criminal proceeding
in which the certificate was issued.
142
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Because of the nature of the provision as a protection against self
incrimination the construction of provisions said to remove the protection must
be read strictly, and conversely a liberal interpretation is to be given to the
protective provisions.
The Notes to the clause, amongst other matters, make it clear that the
privilege does not apply to bodies corporate.
Clause 128A Privilege in respect of self-incrimination – exception for
certain orders etc.
(1)
In this section:
disclosure order means an order made by a Territory court in a
civil proceeding requiring a person to disclose information, as part
of, or in connection with, a freezing or search order under the Rules
of the Supreme Court but does not include an order made by a
court under the Proceeds of Crime Act 2002 (Cth) or the Criminal
Property Forfeiture Act.
Note for definition disclosure order
This definition differs from the NSW Act and Victorian Act.
relevant person means a person to whom a disclosure order is
directed.
(2)
If a relevant person objects to complying with a disclosure order on
the grounds that some or all of the information required to be
disclosed may tend to prove that the person:
(a)
has committed an offence against or arising under an
Australian law or a law of a foreign country; or
(b)
is liable to a civil penalty;
the person must:
(3)
(c)
disclose so much of the information required to be disclosed
to which no objection is taken; and
(d)
prepare an affidavit containing so much of the information
required to be disclosed to which objection is taken (the
privilege affidavit) and deliver it to the court in a sealed
envelope; and
(e)
file and serve on each other party a separate affidavit setting
out the basis of the objection.
The sealed envelope containing the privilege affidavit must not be
143
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
opened except as directed by the court.
(4)
The court must determine whether or not there are reasonable
grounds for the objection.
(5)
Subject to subsection (6), if the court finds that there are
reasonable grounds for the objection, the court must not require the
information contained in the privilege affidavit to be disclosed and
must return it to the relevant person.
(6)
If the court is satisfied that:
(a)
any information disclosed in the privilege affidavit may tend to
prove that the relevant person has committed an offence
against or arising under, or is liable to a civil penalty under, an
Australian law; and
(b)
the information does not tend to prove that the relevant person
has committed an offence against or arising under, or is liable
to a civil penalty under, a law of a foreign country; and
(c)
the interests of justice require the information to be disclosed;
the court may make an order requiring the whole or any part of the
privilege affidavit containing information of the kind referred to in
paragraph (a) to be filed and served on the parties.
(7)
If the whole or any part of the privilege affidavit is disclosed
(including by order under subsection (6)), the court must cause the
relevant person to be given a certificate in respect of the
information referred to in subsection (6)(a).
(8)
In any proceeding in a Territory court:
(a)
evidence of information disclosed by a relevant person in
respect of which a certificate has been given under this
section; and
(b)
evidence of any information, document or thing obtained as a
direct result or indirect consequence of the relevant person
having disclosed that information;
cannot be used against the person. However, this does not apply to
a criminal proceeding in respect of the falsity of the evidence
concerned.
(9)
Subsection (8) does not prevent the use against the relevant
person of any information disclosed by a document:
(a)
that is an annexure or exhibit to a privilege affidavit prepared
by the person in response to a disclosure order; and
144
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(b)
that was in existence before the order was made.
(10) Subsection (8) has effect despite any challenge, review, quashing
or calling into question on any ground of the decision to give, or the
validity of, the certificate concerned.
Clause 128A Privilege in respect of self-incrimination – except for
certain orders etc
This clause provides a process to deal with objections on the grounds of selfincrimination when complying with a freezing order (Mareva) or a search order
(Anton Piller) in civil proceedings other than under the proceeds of crime
legislation. Examples of freezing orders and search orders can be found in
Orders 37A and 37B of the NT Supreme Court Rules.
The clause provides that the privilege against self-incrimination under the Bill
applies to disclosure orders. The principal provisions are outlined below.
Where objection is taken to the provision of information required under a
disclosure order, the person who is subject to the order must prepare an
affidavit containing the required information to which objection is taken (called
a privilege affidavit), deliver it to the court in a sealed envelope, and file and
serve on each other party a separate affidavit setting out the basis of the
objection.
Subclause (5) provides that if the court finds there are reasonable grounds for
the objection, unless the court requires the information to be provided
pursuant to subclause (6), the court must not require the disclosure of the
information and must return it to the person.
Subclause (6) provides that if the court is satisfied that the information may
tend to prove that the person has committed an offence or is liable to a civil
penalty under Australian law, but not under the law of a foreign country, and
the interests of justice require the information to be disclosed, the court may
require the whole or any part of the privilege affidavit to be filed and served on
the parties.
Subclause (7) provides that the court must give the person a certificate in
respect of the information that is disclosed pursuant to subclause (6).
Subclause (8) provides that evidence of that information and evidence of any
information, document or thing obtained as a direct result or indirect
consequence of the disclosure cannot be used against the person in any
proceeding, other than a criminal proceeding in relation to the falsity of the
evidence concerned.
Subclause (9) clarifies that the protection conferred by clause 128A does not
apply to information contained in documents annexed to a privilege affidavit
that were in existence before a search or freezing order was made.
145
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Subclause (10) provides that a certificate has effect regardless of the outcome
of any challenge to its validity. As discussed in relation to clause 128(8)
above, this clause is in response to the Cornwell decision, and serves the
same function.
Clause 187 sets out the general rule that bodies corporate cannot claim this
privilege.
Division 3
Evidence excluded in the public interest
Clause 129 Exclusion of evidence of reasons for judicial etc. decisions
(1)
Evidence of the reasons for a decision made by a person who is:
(a)
a judge in an Australian or overseas proceeding; or
(b)
an arbitrator in respect of a dispute that has been submitted to
the person, or to the person and one or more other persons,
for arbitration;
or the deliberations of a person so acting in relation to such a
decision, must not be given by the person, or a person who was, in
relation to the proceeding or arbitration, under the direction or
control of that person.
(2)
Such evidence must not be given by tendering as evidence a
document prepared by such a person.
(3)
This section does not prevent the admission or use, in a
proceeding, of published reasons for a decision.
(4)
In a proceeding, evidence of the reasons for a decision made by a
member of a jury in another Australian or overseas proceeding, or
of the deliberations of a member of a jury in relation to such a
decision, must not be given by any of the members of that jury.
(5)
This section does not apply in a proceeding that is:
(a)
a prosecution for one or more of the following offences:
(i)
attempt to pervert the course of justice;
(ii)
perverting the course of justice;
(iii)
subornation of perjury;
(iv) embracery;
(v)
bribery of public official;
146
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(vi) misconduct in public office;
(vii) an offence against section 95, 96, 100, 103A, 109 and
204 of the Criminal Code;
(viii) an offence against section 49A of the Juries Act;
(ix) an offence connected with an offence mentioned in
subparagraphs (i) to (viii), including an offence of
conspiring to commit such an offence; or
(b)
in respect of a contempt of a court; or
(c)
by way of appeal from, or judicial review of, a judgment,
decree, order or sentence of a court; or
(d)
by way of review of an arbitral award; or
(e)
a civil proceeding in respect of an act of a judicial officer or
arbitrator that was, and that was known at the time by the
judicial officer or arbitrator to be, outside the scope of the
matters in relation to which the judicial officer or arbitrator had
authority to act.
Note for subsection (5)(a)
Subsection (5)(a) differs from section 129(5)(a)
Commonwealth Act, NSW Act and Victorian Act.
of
the
Clause 129 Exclusion of evidence of reasons for judicial etc decisions
This clause prohibits (subject to some exceptions) evidence of the reasons for
a decision, or of the deliberations of a judge or an arbitrator being given by the
judge or arbitrator, or by a person under his or her direction or control, or by
tendering a document prepared by any of these persons. The clause does
not apply to published reasons for decisions.
The clause also prohibits evidence of the reasons for a decision or the
deliberations of a member of a jury in a proceeding being adduced by any jury
member in another proceeding.
Subclause (5) provides that the prohibitions in this clause do not apply in
various types of proceedings. For example, bribery, contempt of court, or
perverting the course of justice.
147
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 130 Exclusion of evidence of matters of state
(1)
If the public interest in admitting into evidence information or a
document that relates to matters of state is outweighed by the
public interest in preserving secrecy or confidentiality in relation to
the information or document, the court may direct that the
information or document not be adduced as evidence.
(2)
The court may give such a direction either on its own initiative or on
the application of any person (whether or not the person is a party).
(3)
In deciding whether to give such a direction, the court may inform
itself in any way it thinks fit.
(4)
Without limiting the circumstances in which information or a
document may be taken for the purposes of subsection (1) to relate
to matters of state, the information or document is taken for the
purposes of that subsection to relate to matters of state if adducing
it as evidence would:
(5)
(a)
prejudice the security, defence or international relations of
Australia; or
(b)
damage relations between the Commonwealth and a State or
between 2 or more States; or
(c)
prejudice the prevention, investigation or prosecution of an
offence; or
(d)
prejudice the prevention or investigation of, or the conduct of
proceedings for recovery of civil penalties brought with respect
to, other contraventions of the law; or
(e)
disclose, or enable a person to ascertain, the existence or
identity of a confidential source of information relating to the
enforcement or administration of a law of the Commonwealth
or a State; or
(f)
prejudice the proper functioning of the government of the
Commonwealth or a State.
Without limiting the matters that the court may take into account for
the purposes of subsection (1), it is to take into account the
following matters:
(a)
the importance of the information or the document in the
proceeding;
148
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(6)
(b)
if the proceeding is a criminal proceeding – whether the party
seeking to adduce evidence of the information or document is
a defendant or the prosecutor;
(c)
the nature of the offence, cause of action or defence to which
the information or document relates, and the nature of the
subject matter of the proceeding;
(d)
the likely effect of adducing evidence of the information or
document, and the means available to limit its publication;
(e)
whether the substance of the information or document has
already been published;
(f)
if the proceeding is a criminal proceeding and the party
seeking to adduce evidence of the information or document is
a defendant – whether the direction is to be made subject to
the condition that the prosecution be stayed.
A reference in this section to a State includes a reference to a
Territory.
Clause 130 Exclusion of matters of state
This clause interferes as little as possible with the common law regarding
public interest privilege. What is required is a balancing of ‘the nature of the
injury which the nation or public service would be likely to suffer, and the
evidentiary value and importance of the (evidence) in the particular litigation’.
A court must prevent evidence of matters of state (for example, matters
affecting international relations or law enforcement) being adduced if the
public interest in admitting the evidence is outweighed by the public interest in
preserving its secrecy or confidentiality.
The clause provides some guidance on the nature of evidence which relates
to matters of state and lists some matters to be taken into account by the
court when determining whether to direct that information or a document not
be adduced as evidence.
Subclause (5) sets out matters the court is to take into account when
determining whether to exclude evidence of matters of state. Such matters
include—
(a)
the importance of the information or document in the proceeding;
(b)
the likely effect of adducing evidence of the information or document
and the means available to limit its publication;
(c)
in a criminal proceeding, whether the party seeking to adduce evidence
is a defendant or a prosecutor. Further, if a defendant is seeking to
adduce the evidence, whether the direction is to be made subject to a
149
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
condition that the prosecution be stayed.
Clause 131 Exclusion of evidence of settlement negotiations
(1)
(2)
Evidence is not to be adduced of:
(a)
a communication that is made between persons in dispute, or
between one or more persons in dispute and a third party, in
connection with an attempt to negotiate a settlement of the
dispute; or
(b)
a document (whether delivered or not) that has been prepared
in connection with an attempt to negotiate a settlement of a
dispute.
Subsection (1) does not apply if:
(a)
the persons in dispute consent to the evidence being adduced
in the proceeding concerned or, if any of those persons has
tendered the communication or document in evidence in
another Australian or overseas proceeding, all the other
persons so consent; or
(b)
the substance of the evidence has been disclosed with the
express or implied consent of all the persons in dispute; or
(c)
the substance of the evidence has been partly disclosed with
the express or implied consent of the persons in dispute, and
full disclosure of the evidence is reasonably necessary to
enable a proper understanding of the other evidence that has
already been adduced; or
(d)
the communication or document included a statement to the
effect that it was not to be treated as confidential; or
(e)
the evidence tends to contradict or to qualify evidence that
has already been admitted about the course of an attempt to
settle the dispute; or
(f)
the proceeding in which it is sought to adduce the evidence is
a proceeding to enforce an agreement between the persons in
dispute to settle the dispute, or a proceeding in which the
making of such an agreement is in issue; or
(g)
evidence that has been adduced in the proceeding, or an
inference from evidence that has been adduced in the
proceeding, is likely to mislead the court unless evidence of
the communication or document is adduced to contradict or to
qualify that evidence; or
150
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(3)
(h)
the communication or document is relevant to determining
liability for costs; or
(i)
making the communication, or preparing the document,
affects a right of a person; or
(j)
the communication was made, or the document was prepared,
in furtherance of the commission of a fraud or an offence or
the commission of an act that renders a person liable to a civil
penalty; or
(k)
one of the persons in dispute, or an employee or agent of
such a person, knew or ought reasonably to have known that
the communication was made, or the document was prepared,
in furtherance of a deliberate abuse of a power.
For the purposes of subsection (2)(j), if commission of the fraud,
offence or act is a fact in issue and there are reasonable grounds
for finding that:
(a)
the fraud, offence or act was committed; and
(b)
a communication was made or document prepared in
furtherance of the commission of the fraud, offence or act;
the court may find that the communication was so made or the
document so prepared.
(4)
For the purposes of subsection (2)(k), if:
(a)
the abuse of power is a fact in issue; and
(b)
there are reasonable grounds for finding that a communication
was made or document prepared in furtherance of the abuse
of power;
the court may find that the communication was so made or the
document was so prepared.
(5)
In this section:
(a)
a reference to a dispute is a reference to a dispute of a kind in
respect of which relief may be given in an Australian or
overseas proceeding; and
(b)
a reference to an attempt to negotiate the settlement of a
dispute does not include a reference to an attempt to
negotiate the settlement of a criminal proceeding or an
anticipated criminal proceeding; and
(c)
a reference to a communication made by a person in dispute
151
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
includes a reference to a communication made by an
employee or agent of such a person; and
(6)
(d)
a reference to the consent of a person in dispute includes a
reference to the consent of an employee or agent of such a
person, being an employee or agent who is authorised so to
consent; and
(e)
a reference to commission of an act includes a reference to a
failure to act.
In this section:
power means a power conferred by or under an Australian law.
Clause 131 Exclusion of evidence of settlement negotiations
Evidence is not to be adduced of communications made between, or
documents prepared by, parties in dispute in connection with attempts to
settle the dispute (this does not include attempts to settle criminal
proceedings). This clause is to encourage settlements.
The circumstances in which this privilege does not apply are set out in the
clause (for example, if the parties consent or if the communication affects the
rights of a person).
Division 4
General
Clause 131A Application of Division to preliminary proceedings of
courts
(1)
If:
(a)
a person is required by a disclosure requirement to give
information, or to produce a document, which would result in
the disclosure of a communication, a document or its contents
or other information of a kind referred to in Division 1, 1A or 3;
and
(b)
the person objects to giving that information or providing that
document;
the court must determine the objection by applying the provisions of
this Part (other than sections 123 and 128) with any necessary
modifications as if the objection to giving information or producing
the document were an objection to the giving or adducing of
evidence.
(2)
In this section:
152
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
disclosure requirement means a process or order of a court that
requires the disclosure of information or a document and includes
the following:
(a)
a summons or subpoena to produce documents or give
evidence;
(b)
pre-trial discovery;
(c)
non-party discovery;
(d)
interrogatories;
(e)
a notice to produce;
(f)
a request to produce a document under Part 4.6, Division 1.
Clause 131A Application of Division to preliminary proceedings of
courts
This provision was introduced into the Commonwealth Act by the Evidence
Amendment (Journalists Privilege) Act 2007 creating a privilege in relation to
confidential communications made to journalists.
This clause expands the scope of privileges in the Bill so that they apply to
any process or order of a court which requires disclosure as part of
preliminary proceedings.
ALRC 102 noted that the introduction of the UEA meant that two sets of laws
operated in the area of privilege. The UEA governs the admissibility of
evidence of privileged communications and information. Otherwise the
common law rules apply unless the privilege is expressly abrogated by
statute. Within a single proceeding, different laws applied at the pre-trial and
trial stages. The ability to resist or obtain disclosure of the same information
varied.
ALRC 102 recommended that the operation of client legal privilege,
professional confidential relationship privilege, sexual assault communications
privilege and matters of state privilege should be extended to apply to any
compulsory pre-trial process for disclosure (recommendations 14-1, 15-3, 156 and 15-11 respectively).
This provision partly implements those recommendations, by extending the
operation of the privileges to pre-trial court proceedings.
The clause, implementing recommendation 14-6, ensures that clause 123
remains applicable only to the adducing of evidence at trial by an accused in a
criminal proceeding, despite the extension of client legal privilege to pre-trial
court proceedings.
The privileges are not extended to non-curial contexts.
153
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 132 Court to inform of rights to make applications and objection
If it appears to the court that a witness or a party may have grounds for
making an application or objection under a provision of this Part, the
court must satisfy itself (if there is a jury, in the absence of the jury) that
the witness or party is aware of the effect of that provision.
Clause 132 Court to inform of rights to make applications and objections
A court must satisfy itself that a witness or party is aware of his or her rights to
claim a privilege under this Part if it appears that the witness or party may
have a ground for making an application or objection under it. If there is a
jury, this is to be done in the absence of the jury.
Clause 133 Court may inspect etc. documents
If a question arises under this Part relating to a document, the court may
order that the document be produced to it and may inspect the document
for the purpose of determining the question.
Clause 133 Court may inspect etc documents
This clause makes it clear that a court can call for and examine any document
in respect of which a claim for privilege under this Part is made so that it may
determine the claim.
Clause 134 Inadmissibility of evidence that must not be adduced or
given
Evidence that, because of this Part, must not be adduced or given in a
proceeding is not admissible in the proceeding.
Clause 134 Inadmissibility of evidence that must not be adduced or
given
Evidence that, because of this Part must not be adduced or given in a
proceeding, is not admissible in the proceeding.
Part 3.11
Discretionary and mandatory exclusions
The four clauses in this Part are intended to contain an exhaustive list of
matters to be considered when exercising the discretion to exclude otherwise
admissible evidence on policy grounds in both civil and criminal proceedings.
Clause 135 confers a general discretion, in both civil and criminal
proceedings, to exclude otherwise admissible evidence, where the probative
value of the evidence is substantially outweighed by the danger of unfair
prejudice, confusion or waste of time.
154
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 136 confers a discretion to limit the use of particular evidence.
Clause 137 requires a court in criminal proceedings not to admit prosecution
evidence if its probative value is outweighed by the danger of unfair prejudice.
Clause 138 requires a court, in both civil and criminal proceedings, to exclude
unlawfully or improperly obtained evidence, unless the desirability of admitting
it outweighs the undesirability of admitting evidence obtained in that particular
way.
Clause 135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is
substantially outweighed by the danger that the evidence might:
(a)
be unfairly prejudicial to a party; or
(b)
be misleading or confusing; or
(c)
cause or result in undue waste of time.
Clause 135 General discretion to exclude evidence
This clause confers a general discretion to exclude evidence, in both civil and
criminal proceedings, when the probative value of the evidence is
substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in an undue waste of time.
‘Probative value’ is defined in the Dictionary as ‘the extent to which the
evidence could rationally affect the assessment of the probability of the
existence of a fact’. There are, however, variables that can influence the
value. The probative value of hearsay evidence could be affected by the
circumstances in which the representation was made and the opportunity to
test the weight of the evidence. The value of tendency evidence could be
affected by the similarity, underlying unity, and the number and patterns of
incidences being relied on. The possibility of concoction could suggest
contamination.
Defence evidence only has to raise a reasonable doubt so it has a less
stringent test for admissibility than prosecution evidence and it is less likely
the discretion would be exercised against admission.
The dangers must substantially outweigh the probative value of the evidence,
and there is a heavy onus on the party seeking exclusion. There is a
balancing exercise required in both clauses 135 and 137, but the balancing
155
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
process in clause 135, consistently with the primary objective of admitting all
relevant evidence, is weighted against exclusion of the evidence unless the
disadvantages substantially outweigh the advantages.
The phrase ‘unfair prejudice’ is used in clauses 135, 136 and 137, and has
the same meaning in each.
Evidence is not unfairly prejudicial just because it tends to damage the case
of the opposing party, or makes it more likely that the defendant will be
convicted. It may however be unfairly prejudicial if it damages the defendant’s
case in some unacceptable way, or ‘if there is a real risk that the evidence will
be misused by the jury in some unfair way.’ This could be by inflaming
emotions, arousing a sense of horror, mis-estimation of the weight of the
evidence by the fact finder, or by provoking an instinct to punish.
The inability to cross-examine, for example with hearsay evidence, may in
certain circumstances lead to unfairness but is not necessarily decisive. A
statement of a person who died before the hearing was admitted in
Lane v Jurd (No 2) (1995) 40 NSWLR 708, even though the witness was not
disinterested and (of course) was unable to be cross-examined. Justice
McHugh in Papakosmas v The Queen (1999) 196 CLR 297 warned against
being ‘too much influenced by the common law attitude to hearsay
evidence…(and) the change that the Act has brought about in making
hearsay evidence admissible to prove facts in issue’.
‘Undue waste of time’ may sound tautologous but the provision is designed to
ensure that only in an extreme case would evidence be denied on this basis.
The common law has always excluded ‘the use of evidence which, though
possibly relevant would involve a waste of the courts recourses out of all
proportion to the probable value of the results’. Such evidence has been
traditionally described as ‘lacking sufficient relevance’, ‘remote’, or collateral
to the main enquiry. Needless duplication may waste time, as may tangential
evidence, and evidence that was not disclosed may waste time with
necessary rebuttal or recalling witnesses.
Where there is a trial by judge or magistrate alone it would be unusual for a
judge or magistrate to concede that they may be unfairly prejudiced by any
evidence.
Clause 136 General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger
that a particular use of the evidence might:
(a)
be unfairly prejudicial to a party; or
(b)
be misleading or confusing.
156
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 136 General discretion to limit use of evidence
This provision did not exist in the original UEA Bill. It confers a general
discretion, in both civil and criminal trials, to limit the use of evidence to avoid
the danger of prejudice or confusion. Because evidence can be used to
support any rational inference once the evidence is admitted for any reason,
this clause, rather than leaving the court with the power to only admit or
exclude, gives the court discretion to admit the evidence but limit its use. It
often applies where evidence is relevant for more than one purpose, most
often where hearsay evidence is admitted for a non-hearsay purpose.
The danger of unfair prejudice from the secondary use of the evidence can be
reduced if the use of the evidence can be restricted. For example clause 60
allows evidence of a previous representation to be used for a relevant
hearsay purpose if it has been admitted because it is relevant for a nonhearsay purpose. Similarly, clause 77 allows evidence of an opinion that was
relevant for another purpose to be used as proof of the existence of a fact
about which the opinion was expressed. The fact that the evidence would not
otherwise have been admissible is not on its own enough to exclude it but, in
particular circumstances there may be a case for applying clause 136. The
policy behind the hearsay and opinion provisions of the UEA should not,
however, be undercut by applying clause 136 as a matter of course,
particularly where a judge rather than a jury is the trier of fact. Clause 136
must not be used to re-instate ‘the common law rules and distinctions that the
legislature has discarded.’(Gleeson and Hayne JJ in Papakosmas v The
Queen (1999) 196 CLR 297 at [39])
Again, a significant consideration would be whether the proceedings were
with a jury or judge alone. If proceedings were with a jury, directions would
have to be given, as they would be at common law, over the permissible use
of the evidence. If that were thought to be ineffective, the evidence may be
excluded entirely under clause 135 or, where applicable, clause 137.
Clause 137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence
adduced by the prosecutor if its probative value is outweighed by the
danger of unfair prejudice to the defendant.
Clause 137 Exclusion of prejudicial evidence in criminal proceedings
This clause provides that a criminal court must refuse to admit prosecution
evidence ‘if its probative value is outweighed by the danger of unfair prejudice
to the defendant’. This is similar to the common law Christie discretion,
although some judges have rejected the provision’s description as a
‘discretion’, rather saying it is ‘a connected series of findings of law and fact
upon which clause 137 will operate without any further discretionary input of
the judge’. It engages no discretionary judgement or intuitive response and
‘depends on the reaching of a rational conclusion drawn from facts admitted
157
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
or proved’.
Again, there is a balancing exercise, although in clause 137 (as opposed to
clause 135) there is no requirement that the danger must ‘substantially’
outweigh the probative value of the evidence. The use of the word ‘must’
mandates the exclusion if the probative value is outweighed by ‘the danger of
unfair prejudice to the defendant’. The fact that a subject matter is complex,
unattractive or gruesome is not necessarily sufficient to warrant exclusion.
Editing evidence, limiting the way it can be used, or giving directions can
remove or ameliorate the danger of unfair prejudice.
The balancing exercise requires the probative value of the evidence to be
ascertained. The ‘probative value’ of evidence means its degree of relevance.
The definition of ‘relevance’ refers to evidence that ‘if it were accepted, could
rationally affect the probability of a fact in issue’. The definition of ‘probative
value’, however, does not import the qualification ‘if it were accepted’.
The common law discretion to exclude unfairly prejudicial evidence in criminal
trials is retained in the provision. The mere fact that the evidence is unfairly
prejudicial does not mean that the balancing exercise will lead to its exclusion.
There would, however, have to be a very strong degree of probative value
that outweighs the prejudice.
There is no reference in this clause, as there is in clauses 135 and 136, to the
evidence being confusing or misleading or even a waste of time. Even though
the common law discretion upon which this clause is based has been applied
to exclude evidence that might be misleading, under the UEA it is only the
danger of unfair prejudice that the court is to balance against the probative
value of the evidence.
Clause 138 Exclusion of improperly or illegally obtained evidence
(1)
Evidence that was obtained:
(a)
improperly or in contravention of an Australian law; or
(b)
in consequence of an impropriety or of a contravention of an
Australian law;
is not to be admitted unless the desirability of admitting the
evidence outweighs the undesirability of admitting evidence that
has been obtained in the way in which the evidence was obtained.
(2)
Without limiting subsection (1), evidence of an admission that was
made during or in consequence of questioning, and evidence
obtained in consequence of the admission, is taken to have been
obtained improperly if the person conducting the questioning:
(a)
did, or omitted to do, an act in the course of the questioning
158
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
even though he or she knew or ought reasonably to have
known that the act or omission was likely to impair
substantially the ability of the person being questioned to
respond rationally to the questioning; or
(b)
(3)
made a false statement in the course of the questioning even
though he or she knew or ought reasonably to have known
that the statement was false and that making the false
statement was likely to cause the person who was being
questioned to make an admission.
Without limiting the matters that the court may take into account
under subsection (1), it is to take into account:
(a)
the probative value of the evidence; and
(b)
the importance of the evidence in the proceeding; and
(c)
the nature of the relevant offence, cause of action or defence
and the nature of the subject-matter of the proceeding; and
(d)
the gravity of the impropriety or contravention; and
(e)
whether the impropriety or contravention was deliberate or
reckless; and
(f)
whether the impropriety or contravention was contrary to or
inconsistent with a right of a person recognised by the
International Covenant on Civil and Political Rights; and
(g)
whether any other proceeding (whether or not in a court) has
been or is likely to be taken in relation to the impropriety or
contravention; and
(h)
the difficulty (if any) of obtaining the evidence without
impropriety or contravention of an Australian law.
Note for subsection (3)(f)
The International Covenant on Civil and Political Rights is set out in
Schedule 2 to the Human Rights and Equal Opportunity
Commission Act 1986 (Cth).
Clause 138 Exclusion of improperly or illegally obtained evidence
This clause provides that, in both civil and criminal proceedings, where
evidence has been obtained unlawfully or improperly, the court must exclude
it unless ’the desirability of admitting the evidence outweighs the undesirability
of admitting evidence that has been obtained in the way in which the evidence
was obtained’.
Both the policy and the language have been derived to a great extent from the
159
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
joint judgements of Stephen and Aitkin JJ in Bunning v Cross (1978) 141 CLR
54, and the clause is the statutory approximation and extension of the
Bunning v Cross discretion and the related Ridgeway (1995) 184 CLR 19
principle.
The common law discretion is altered, however, in a number of ways. The
discretion applies to civil as well as criminal hearings, and the onus of proof
has changed by requiring the party tendering the tainted evidence to
persuade the judge the evidence should be admitted, but only after the
opposing party has, on the balance of probabilities, persuaded the court that
the evidence is tainted by illegality or impropriety. The discretion is extended
to evidence gathered by anyone, not just police officers, and it extends to
confessional material (subclause (2)).
There is a fundamental dilemma in the conflict between the two competing
requirements of public policy. These are, on the one hand, the public interest
in admitting reliable evidence (and thereby convicting the guilty), and on the
other, the public interest in vindicating individual rights and deterring
misconduct and maintaining the legitimacy of the judicial system.
There is a fine line, however, between improper behaviour and an acceptable
degree of deception and trickery. ‘Subterfuge ruses and tricks may be
lawfully employed by police, acting in the public interest.’ (R v Swaffield; Pavic
v R (1998) 192 CLR 159).
Subclause 138(2) ensures that admissions, and evidence obtained in
consequence of admissions, is taken to have been obtained improperly in
certain circumstances.
The admissibility of admissions may require
consideration of clauses 84, 85, and 90 as well as clause 138. This is
consistent with the common law interrelationship and overlapping of
voluntariness, reliability, fairness, and considerations of public policy.
In deciding the question of admissibility clause 138(3) gives a non-exclusive
list of matters the court may take into account. These are:
(a) the probative value of the evidence;
Excluding probative evidence is more likely to endanger accurate fact finding.
The greater the probative value, the greater the public interest is in having the
evidence admitted. The fact that the evidence is of high probative value will
weigh in favour of its admission.
(b) The importance of the evidence in the proceeding;
Other cogent and untainted evidence will reduce the public interest in
admitting improperly obtained evidence.
(c) The nature of the relevant offence;
The ALRC considered ‘there is …a greater public interest that a murderer be
convicted …than someone guilty of a victimless crime’.
160
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(d) The gravity of the impropriety or contravention;
If the impropriety or contravention was not deliberate or reckless it would point
to the admission of the evidence.
(e) Whether the impropriety or contravention was deliberate or reckless;
Wilful or reckless disregard of an individual’s civil rights is likely to be a strong
factor against the exercise of the discretion to admit the evidence.
Conversely, if police officers in breach of their statutory obligations were
neither reckless nor dishonest but were instead, inexperienced or
inadequately trained (e.g. in new statutory provisions), then it would point
towards admission of the evidence. Where the breach of the law is innocent,
and the alleged offence serious there must be powerful countervailing
considerations before the evidence should be rejected.
(f) Whether the impropriety or contravention was contrary to or
inconsistent with a right of a person recognised by the International
Covenant on Civil and Political Rights;
This is self explanatory.
(g) Whether any other proceeding (whether or not in court) has been or is
likely to be taken in relation to the impropriety or contravention;
The ALRC considered that an important factor in the decision to exclude
evidence was the availability of alternative sanctions, such as criminal or
disciplinary proceedings, or civil actions. If appropriate action is taken by
those in higher authority the case for exclusion is weaker.
(h) The difficulty of obtaining the evidence without impropriety or
contravention of an Australian law;
There might be circumstances of urgency, for example of the evidence
disappearing if there were any delay, which may excuse the impropriety.
Often the unlawful conduct will involve collection of evidence in contravention
of legislated restraints imposed to protect human rights and freedoms. The
primary consideration identified in Bunning v Cross was whether the police
officers had acted in deliberate disregard of the law or rather as a result of an
honest but mistaken belief. The real evil is ‘a deliberate or reckless disregard
of the law by those whose duty it is to enforce it’. This is reflected in
paragraphs (d), (e) and (f) of subclause 138(3). Accordingly, a deliberate or
reckless disregard of legal constraints, involving a contravention of an
internationally recognised human right or fundamental freedom, will
undoubtedly weigh against admission. On the other hand, if the contravention
were accidental or inadvertent and involved no serious contravention of an
internationally recognised right, that would tend to favour admission.
The impugned information need not be obtained improperly or in
contravention of a law. It is sufficient if it is obtained in consequence of such
161
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
impropriety or breach of law. The party seeking the exclusion bears the onus
of showing the chain of causation. Particular difficulty rests with evidence of
an offence ‘caused’ by the impugned conduct as in, for example, a Ridgeway2
style ‘entrapment’ case, or an ill-advised arrest leading to resisting and
assaulting police.
There are public interest considerations in assessing the ‘desirability of
admitting the evidence’. Accurate fact determination or ‘rectitude of decision’
as Bentham expressed it, is important in giving the legal system legitimacy.
There is a public interest in crime control and punishing criminals which says
the legal system should effectively and efficiently apprehend, convict and
punish the guilty, while screening out the innocent as early as possible. If
relevant evidence is excluded this interest is sacrificed.
In this clause, the onus first lies on the defendant seeking to have the
evidence excluded, to show that it was illegally or improperly obtained, and
once that onus is met, then the prosecution, wishing the evidence to be
admitted, must satisfy the court that the desirability of admitting the evidence
outweighs the undesirability of admitting the evidence, given the way it was
obtained.
The higher the probative value of the evidence the greater is the public
interest in its admission, and the more serious the crime the greater is the
public interest also. Consequently the probative value of the evidence and its
importance in the proceeding (subclauses 138(3)(a) and (b)), if both high,
combined with a serious criminal case (subclause (c)) may militate strongly in
favour of admission, particularly if it is difficult to obtain the evidence without
impropriety or contravention of the law (subclause 138(3)(h)).
Clause 138 does not refer to ‘unfairness’ to the defendant, and although
clause 90 does create a ‘fairness discretion’ to exclude evidence, the
discretion is restricted to admissions. It is debateable how much ‘fairness’ is
taken into account in exercising the discretion in clause 138, although there is
an obvious public interest in a defendant having ‘a fair trial’.
The clause requires a balancing exercise, conducted in the particular
circumstances of the case. This balancing exercise is the discretionary
aspect of the provision. At common law the onus is on the defendant to
persuade the court to exercise its discretion to exclude improperly obtained
evidence, but under the UEA once the evidence is shown to have been
obtained improperly the onus is reversed and the prosecution must persuade
the court to allow it.
Clause 139 Cautioning of persons
(1)
2
For the purposes of section 138(1)(a), evidence of a statement
made or an act done by a person during questioning is taken to
Ridgeway v The Queen (1995) 184 CLR 19
162
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
have been obtained improperly if:
(2)
(a)
the person was under arrest for an offence at the time; and
(b)
the questioning was conducted by an investigating official who
was at the time empowered, because of the office that he or
she held, to arrest the person; and
(c)
before starting the questioning the investigating official did not
caution the person that the person does not have to say or do
anything but that anything the person does say or do may be
used in evidence.
For the purposes of section 138(1)(a), evidence of a statement
made or an act done by a person during questioning is taken to
have been obtained improperly if:
(a)
the questioning was conducted by an investigating official who
did not have the power to arrest the person; and
(b)
the statement was made, or the act was done, after the
investigating official formed a belief that there was sufficient
evidence to establish that the person has committed an
offence; and
(c)
the investigating official did not, before the statement was
made or the act was done, caution the person that the person
does not have to say or do anything but that anything the
person does say or do may be used in evidence.
(3)
The caution must be given in, or translated into, a language in
which the person is able to communicate with reasonable fluency,
but need not be given in writing unless the person cannot hear
adequately.
(4)
Subsections (1), (2) and (3) do not apply so far as any Australian
law requires the person to answer questions put by, or do things
required by, the investigating official.
(5)
A reference in subsection (1) to a person who is under arrest
includes a reference to a person who is in the company of an
investigating official for the purpose of being questioned, if:
(a)
the official believes that there is sufficient evidence to
establish that the person has committed an offence that is to
be the subject of the questioning; or
(b)
the official would not allow the person to leave if the person
wished to do so; or
(c)
the official has given the person reasonable grounds for
163
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
believing that the person would not be allowed to leave if he or
she wished to do so.
(6)
A person is not treated as being under arrest only because of
subsection (5) if:
(a)
the official is performing functions in relation to persons or
goods entering or leaving Australia and the official does not
believe the person has committed an offence against a law of
the Commonwealth; or
(b)
the official is exercising a power under an Australian law to
detain and search the person or to require the person to
provide information or to answer questions.
Clause 139 Cautioning of Persons
This clause applies to cautioning of suspects for the purposes of clause
138(1)(a) (evidence obtained unlawfully or improperly), and reflects the high
value given to the right to silence. The effect of the provision is that if a
statement is improperly obtained, (by, for example, no proper caution being
administered) the discretion under clause 138 may result in its exclusion.
Once the statement is deemed improperly obtained, the onus shifts to the
prosecution seeking to have the evidence admitted. This is a significant
change from the common law.
There is nothing that stops a court from ruling a statement was obtained
improperly, notwithstanding that the provision does not mandate its exclusion,
say, for example, in a situation regarding non-observance of the Anunga rules
or where the provisions of the Police Administration Act were not complied
with, or where a suspect was mislead. Equally a failure to caution may mean
it would be unfair to admit the admission pursuant to clause 90,
notwithstanding that the terms of clause 139 did not mandate the exclusion.
The clause refers to events arising under ‘questioning’ by ‘investigating
officials’ and does not (now) refer to ‘official questioning’. This broadens the
provision to include the time in between questioning periods. The definition of
‘investigating official’ does not include an undercover police officer, and a
broad interpretation is given to the term ‘under arrest’.
The clause has been held to be ‘purposive’, and the issue is whether the
caution was delivered in such a way as to ensure the person arrested
understood the caution.
164
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Chapter 4
Proof
Introductory Note
Outline of this Chapter
This Chapter is about the proof of matters in a proceeding.
Part 4.1 is about the standard of proof in civil proceedings and in criminal
proceedings.
Part 4.2 is about matters that do not require proof in a proceeding.
Part 4.3 makes easier the proof of the matters dealt with in that Part.
Part 4.4 is about requirements that evidence be corroborated.
Part 4.5 requires judges to warn juries about the potential unreliability of
certain kinds of evidence.
Part 4.6 sets out procedures for proving certain other matters.
Part 4.1
Standard of proof
Clause 140 Civil proceedings – standard of proof
(1)
In a civil proceeding, the court must find the case of a party proved
if it is satisfied that the case has been proved on the balance of
probabilities.
(2)
Without limiting the matters that the court may take into account in
deciding whether it is so satisfied, it is to take into account:
(a)
the nature of the cause of action or defence; and
(b)
the nature of the subject-matter of the proceeding; and
(c)
the gravity of the matters alleged.
Clause 140 Civil proceedings - standard of proof
The standard of proof for civil proceedings is on the balance of probabilities.
Clause 140(2) retains the common law doctrine in Briginshaw v Briginshaw
(1938) 60 CLR 336. This principle is that the strength of the evidence
necessary to satisfy the standard of the balance of probabilities varies
according to the gravity of the consequences especially if the fact in issue is
the occurrence of criminal conduct.
165
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 141 Criminal proceedings – standard of proof
(1)
In a criminal proceeding, the court is not to find the case of the
prosecution proved unless it is satisfied that it has been proved
beyond reasonable doubt.
(2)
In a criminal proceeding, 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.
Clause 141 Criminal proceedings - standard of proof
This adopts the common law position that the prosecution standard of proof is
beyond reasonable doubt and, where a defendant bears a legal burden, it is
on the balance of probabilities. A defendant may on occasion bear a burden
of proof, for example in drug legislation, where possession of a certain
amount is deemed supply. This burden is on the balance of probabilities.
This is different from an evidential burden raising a defence, such as self
defence. Evidence of slight probative value can satisfy an evidential burden
and the prosecution then bears the legal burden to rebut the defence, and
prove the defendant guilty beyond reasonable doubt.
Clause 142 Admissibility of evidence – standard of proof
(1)
Except as otherwise provided by this Act, in any proceeding the
court is to find that the facts necessary for deciding:
(a)
a question whether evidence should be admitted or not
admitted, whether in the exercise of a discretion or not; or
(b)
any other question arising under this Act;
have been proved if it is satisfied that they have been proved on the
balance of probabilities.
(2)
In determining whether it is so satisfied, the matters that the court
must take into account include:
(a)
the importance of the evidence in the proceeding; and
(b)
the gravity of the matters alleged in relation to the question.
Clause 142 Admissibility of evidence - standard of proof
This clause provides that the standard of proof for a finding of fact necessary
for deciding a question whether evidence should or should not be admitted in
a proceeding, or any other question arising under the Bill (if the Bill does not
otherwise provide) is proof on the balance of probabilities. The court must
166
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
take into account the importance of the matter in the proceeding and the
gravity of the matters alleged in relation to the question.
There are other provisions that do expressly ‘otherwise provide’ for a different
standard of proof, for example clauses 57(1), 87, 88, 125(2) and 146(2).
Part 4.2
Judicial notice
Clause 143 Matters of law
(1)
Proof is not required about the provisions and coming into operation
(in whole or in part) of:
(a)
an Act, an Imperial Act in force in Australia, a Commonwealth
Act, an Act of a State or an Act or Ordinance of a Territory; or
(b)
a regulation, rule or by-law made, or purporting to be made,
under such an Act or Ordinance; or
(c)
a proclamation or order of the Governor-General, the
Governor of a State or the Administrator or Executive of a
Territory made, or purporting to be made, under such an Act
or Ordinance; or
(d)
an instrument of a legislative character (for example, a rule of
court) made, or purporting to be made, under such an Act or
Ordinance, being an instrument that is required by or under a
law to be published, or the making of which is required by or
under a law to be notified, in any government or official
gazette (by whatever name called).
(2)
A judge may inform himself or herself about those matters in any
way that the judge thinks fit.
(3)
A reference in this section to an Act, being an Act of an Australian
Parliament, includes a reference to a private Act passed by that
Parliament.
Note for section 143
Section 5 of the Commonwealth Act extends the operation of the
equivalent Commonwealth section to proceedings in all Australian
courts.
Clause 143 Matters of law
This clause allows a court to take judicial notice of matters of law without the
need for formal proof by evidence. This includes the provisions and coming
into operation of Acts and statutory rules.
167
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 144 Matters of common knowledge
(1)
Proof is not required about knowledge that is not reasonably open
to question and is:
(a)
common knowledge in the locality in which the proceeding is
being held or generally; or
(b)
capable of verification by reference to a document the
authority of which cannot reasonably be questioned.
(2)
The judge may acquire knowledge of that kind in any way the judge
thinks fit.
(3)
The court (including, if there is a jury, the jury) is to take knowledge
of that kind into account.
(4)
The judge is to give a party such opportunity to make submissions,
and to refer to relevant information, relating to the acquiring or
taking into account of knowledge of that kind as is necessary to
ensure that the party is not unfairly prejudiced.
Clause 144 Matters of common knowledge
This clause allows judicial notice of facts which are ‘not reasonably open to
question’, and are matters of local ‘common knowledge’ in the locality, or can
be verified by consulting authoritative sources, or are capable of documentary
verification. Judges can inform themselves of this.
Examples of general common knowledge include: the nature of the internet
and world wide web; that clocks can show different times; and that asbestos is
dangerous.
The term ‘knowledge’ is used in the Bill to limit the facts to those which are
certain and not merely beliefs or opinions. Subclause (2) permits a judge to
acquire this knowledge in any way that he or she thinks fit, which probably
expands the scope of permissible judicial notice beyond the common law.
Clause 145Certain Crown certificates
This Part does not exclude the application of the principles and rules of
the common law and of equity relating to the effect of a certificate given
by or on behalf of the Crown with respect to a matter of international
affairs.
Clause 145 Certain Crown certificates
This clause preserves the rules of the common law and equity relating to the
effect of a conclusive certificate relating to a matter of international affairs.
168
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Part 4.3
Facilitation of proof
This Part creates rebuttable presumptions regarding signatures, documents,
seals, processes and devices, and official documents. It also creates
presumptions regarding post and communications.
This Part coupled with the hearsay exceptions of clause 69, 70 and 71, and
inferences allowed by clause 183, provides a comprehensive scheme for the
admissibility of business documents and records and obviates the necessity
for the Evidence (Business Records) Interim Arrangements Act.
Division 1
General
Clause 146 Evidence produced by processes, machines and other
devices
(1)
(2)
This section applies to a document or thing:
(a)
that is produced wholly or partly by a device or process; and
(b)
that is tendered by a party who asserts that, in producing the
document or thing, the device or process has produced a
particular outcome.
If it is reasonably open to find that the device or process is one that,
or is of a kind that, if properly used, ordinarily produces that
outcome, it is presumed (unless evidence sufficient to raise doubt
about the presumption is adduced) that, in producing the document
or thing on the occasion in question, the device or process
produced that outcome.
Example for section 146
It would not be necessary to call evidence to prove that a
photocopier normally produced complete copies of documents and
that it was working properly when it was used to photocopy a
particular document.
Clause 146 Evidence produced by processes, machines and other
devices
This clause provides for evidence produced wholly or partly by machines. A
machine is presumed to be working properly on the day in question. A
rebuttable presumption is created placing the burden of proof on the party
disputing the presumed fact, and the prima facie presumption disappears
once a doubt is raised. The burden is only to point to “evidence sufficient to
raise doubt about the presumption”, which is not as high a burden as the
ALRC originally wanted.
169
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 147 Documents produced by processes, machines and other
devices in the course of business
(1)
(2)
This section applies to a document:
(a)
that is produced wholly or partly by a device or process; and
(b)
that is tendered by a party who asserts that, in producing the
document, the device or process has produced a particular
outcome.
If:
(a)
the document is, or was at the time it was produced, part of
the records of, or kept for the purposes of, a business
(whether or not the business is still in existence); and
(b)
the device or process is or was at that time used for the
purposes of the business;
it is presumed (unless evidence sufficient to raise doubt about the
presumption is adduced) that, in producing the document on the
occasion in question, the device or process produced that outcome.
(3)
Subsection (2) does not apply to the contents of a document that
was produced:
(a)
for the purpose of conducting, or for or in contemplation of or
in connection with, an Australian or overseas proceeding; or
(b)
in connection with an investigation relating or leading to a
criminal proceeding.
Note for section 147
Section 182 of the Commonwealth Act gives section 147 of the
Commonwealth Act a wider application in relation to
Commonwealth records and certain Commonwealth documents.
Clause 147 Documents produced by processes, machines and other
devices in the course of business
This clause creates a similar presumption to clause 146, for documents
produced by machines in the course of business. The presumption applies
specifically to business records and does not apply to documents that were
prepared in connection with a possible proceeding or made in connection with
a criminal investigation.
The burden (as it is in clause 146) is only to point to “evidence sufficient to
raise doubt about the presumption”, which is not as high a burden as the
ALRC originally wanted.
170
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 148 Evidence of certain acts of justices, Australian lawyers and
notaries public
It is presumed, unless the contrary is proved, that a document was
attested or verified by, or signed or acknowledged before, a justice of the
peace, Commissioner of Oaths, Australian lawyer or notary public, if:
(a)
an Australian law requires, authorises or permits it to be attested,
verified, signed or acknowledged by a justice of the peace,
Commissioner of Oaths, Australian lawyer or notary public, as the
case may be; and
(b)
it purports to have been so attested, verified, signed or
acknowledged.
Clause 148 Evidence of certain acts of justices, lawyers and notaries
public
It is presumed (unless the contrary is proved) that documents were attested,
verified, signed or acknowledged by a justice of the peace, an Australian
lawyer (a defined term) or a notary public if they purport to be so attested,
verified, signed or acknowledged.
Clause 149 Attestation of documents
It is not necessary to adduce the evidence of an attesting witness to a
document (not being a testamentary document) to prove that the
document was signed or attested as it purports to have been signed or
attested.
Note for section 149
Section 182 of the Commonwealth Act gives section 149 of the
Commonwealth Act a wider application in relation to Commonwealth
records and certain Commonwealth documents.
Clause 149 Attestation of documents
This clause dispenses with the need to call a witness who attested to the
execution of a document (other than a will or other testamentary document) to
give evidence about the execution of the document. However, it will still be
necessary to prove the signature of the maker of the document concerned.
Clause 150 Seals and signatures
(1)
If the imprint of a seal appears on a document and purports to be
the imprint of:
(a)
the Public Seal of the Territory; or
171
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(b)
a Royal Great Seal; or
(c)
the Great Seal of Australia; or
(d)
another seal of the Commonwealth; or
(e)
a seal of a State, another Territory or a foreign country; or
(f)
the seal of a body (including a court or a tribunal), or a body
corporate, established by or under Royal Charter or by an
Australian law or the law of a foreign country;
it is presumed, unless the contrary is proved, that the imprint is the
imprint of that seal, and the document was duly sealed as it
purports to have been sealed.
Note for subsection (1)
The Commonwealth Act has a different subsection (1).
(2)
(3)
(4)
If the imprint of a seal appears on a document and purports to be
the imprint of the seal of an office holder, it is presumed, unless the
contrary is proved, that:
(a)
the imprint is the imprint of that seal; and
(b)
the document was duly sealed by the office holder acting in
his or her official capacity; and
(c)
the office holder held the relevant office when the document
was sealed.
If a document purports to have been signed by an office holder in
his or her official capacity, it is presumed, unless the contrary is
proved, that:
(a)
the document was signed by the office holder acting in that
capacity; and
(b)
the office holder held the relevant office when the document
was signed.
In this section:
office holder means:
(a)
the Sovereign; or
(b)
the Governor-General; or
(c)
the Governor of a State; or
172
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(5)
(d)
the Administrator of a Territory; or
(e)
a person holding any other office under an Australian law or a
law of a foreign country.
This section extends to documents sealed, and documents signed,
before the commencement of this section.
Notes for section 150
1
Section 5 of the Commonwealth Act extends the operation of
this section of the Commonwealth Act to proceedings in all
Australian courts.
2
Australian law is defined in the Dictionary.
Clause 150 Seals and signatures
It is presumed (unless the contrary is proved) that seals (including Royal
seals, government seals, seals of bodies corporate and seals of persons
acting in an official capacity) are authentic and valid. A similar presumption is
made with respect to the signature of persons acting in an official capacity.
Clause 151 Seals of bodies established under State law
Note for section 151
The Commonwealth Act includes a provision dealing with certain seals of
bodies established by Royal Charter or a law of a State.
Clause 151 Seals of bodies established under State law
This clause contains no substantive provision. Its inclusion ensures parity
with the Commonwealth Act.
Clause 152 Documents produced from proper custody
If a document that is or purports to be more than 20 years old is
produced from proper custody, it is presumed, unless the contrary is
proved, that:
(a)
the document is the document that it purports to be; and
(b)
if it purports to have been executed or attested by a person – it was
duly executed or attested by that person.
Note for section 152
Section 182 of the Commonwealth Act gives section 152 of the
Commonwealth Act a wider application in relation to Commonwealth
records and certain Commonwealth documents.
173
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 152 Documents produced from proper custody
It is presumed (unless the contrary is proved) that a document that is more
than 20 years old, which is produced from proper custody, is what it purports
to be and was duly executed or attested.
Division 2
Matters of official record
Clause 153 Gazettes and other official documents
(1)
It is presumed, unless the contrary is proved, that a document
purporting:
(a)
to be any government or official gazette (by whatever name
called) of the Territory, the Commonwealth, a State, another
Territory or a foreign country; or
(b)
to have been printed by the Government Printer of the
Territory, or by the government or official printer of the
Commonwealth or of a State or another Territory; or
(c)
to have been printed by authority of the government or
administration of the Territory, the Commonwealth, a State,
another Territory or a foreign country;
is what it purports to be and was published on the day on which it
purports to have been published.
(2)
If:
(a)
there is produced to a court:
(i)
a copy of any government or official gazette (by
whatever name called) of the Territory, the
Commonwealth, a State, another Territory or a foreign
country; or
(ii)
a document that purports to have been printed by the
Government Printer of the Territory, or by the
government or official printer of the Commonwealth or of
a State or another Territory; or
(iii)
a document that purports to have been printed by
authority of the government or administration of the
Territory, the Commonwealth, a State or another
Territory or a foreign country; and
174
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(b)
the doing of an act:
(i)
by the Governor-General or by the Governor of a State
or the Administrator of a Territory; or
(ii)
by a person authorised or empowered to do the act by
an Australian law or a law of a foreign country;
is notified or published in the copy or document;
it is presumed, unless the contrary is proved, that the act was duly
done and, if the day on which the act was done appears in the copy
or document, it was done on that day.
Note for section 153
Section 5 of the Commonwealth Act extends the operation of
section 153 of the Commonwealth Act to proceedings in all
Australian courts.
Clause 153 Gazettes and other official documents
Unless the contrary is proved, documents, such as the Government Gazette
and other documents printed with the authority of the government, are
presumed to be what they purport to be and were published on the day on
which they purport to have been published. The clause also provides that if
such a document contains or notifies the doing of an official act, it will be
presumed that the act was validly done and, if the date on which it was done
is indicated in the document, the act was done on that date.
Clause 154 Documents published by authority of Parliaments etc.
It is presumed, unless the contrary is proved, that a document purporting
to have been printed by authority of an Australian Parliament, a House of
an Australian Parliament, a committee of such a House or a committee
of an Australian Parliament:
(a)
is what it purports to be; and
(b)
was published on the day on which it purports to have been
published.
Clause 154 Documents published by authority of Parliaments etc
Unless the contrary is proved, documents purporting to have been printed by
authority of an Australian Parliament, or a House or Committee of such a
Parliament, are presumed to be published on the day they purport to have
been published.
175
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 155 Evidence of official records
(1)
Evidence of a Commonwealth record or of a public document of the
Territory, a State or another Territory may be adduced by producing
a document that:
(a)
(b)
(2)
purports to be such a record or document and to be signed or
sealed by:
(i)
a Minister of the Commonwealth, or a Minister of the
Territory, a State or another Territory, as the case
requires; or
(ii)
a person who might reasonably be supposed to have
custody of the record or document; or
purports to be a copy of or extract from the record or
document that is certified to be a true copy or extract by:
(i)
a Minister of the Commonwealth, or a Minister of the
Territory, a State or another Territory, as the case
requires; or
(ii)
a person who might reasonably be supposed to have
custody of the record or document.
If such a document is produced, it is presumed, unless evidence
that is sufficient to raise doubt about the presumption is adduced,
that:
(a)
the document is the record, public document, copy or extract
that it purports to be; and
(b)
the Minister of the Commonwealth, or the Minister of the
Territory, the State or the other Territory, or the person:
(i)
signed or sealed the record; or
(ii)
certified the copy or extract as a true copy or extract;
as the case requires.
Note for section 155
This section differs from section 155 of the Commonwealth Act. The
Commonwealth provision refers to evidence of a "public record" of
a State or Territory rather than evidence of a "public document" of a
State or Territory.
176
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 155 Evidence of official records
Evidence of a document that is a Commonwealth record or a state or territory
public document may be given by production of a document that purports to
be such a record or document or that purports to be a copy of or extract from
that record that is certified by a Minister.
Evidence is also able to be given if such a record or document is signed or
sealed or certified to be a copy or extract by a person who might reasonably
be supposed to have custody of it.
Clause 155A Evidence of Commonwealth documents
Note for section 155A
The Commonwealth Act includes a provision that relates to evidence of
Commonwealth documents.
Clause 155A Evidence of Commonwealth documents
This clause contains no substantive provision. Its inclusion ensures parity in
section numbering with the Commonwealth, Victorian and NSW Acts.
Clause 156 Public documents
(1)
A document that purports to be a copy of, or an extract from or
summary of, a public document and to have been:
(a)
sealed with the seal of a person who, or a body that, might
reasonably be supposed to have the custody of the public
document; or
(b)
certified as such a copy, extract or summary by a person who
might reasonably be supposed to have custody of the public
document;
is presumed, unless the contrary is proved, to be a copy of the
public document, or an extract from or summary of the public
document.
(2)
If an officer entrusted with the custody of a public document is
required by a court to produce the public document, it is sufficient
compliance with the requirement for the officer to produce a copy
of, or extract from, the public document if it purports to be signed
and certified by the officer as a true copy or extract.
(3)
It is sufficient production of a copy or extract for the purposes of
subsection (2) if the officer sends it by prepaid post, or causes it to
be delivered, to:
177
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(4)
(a)
the proper officer of the court in which it is to be produced; or
(b)
the person before whom it is to be produced.
The court before which a copy or extract is produced under
subsection (2) may direct the officer to produce the original public
document.
Note for section 156
Section 182 of the Commonwealth Act gives section 156 of the
Commonwealth Act a wider application in relation to
Commonwealth records.
Clause 156 Public documents
It is presumed, unless the contrary is proved, that a copy of, or an extract from
or summary of, a public document purporting to be sealed or certified as such
by a person who might reasonably be supposed to have custody of the
document is a copy, extract or summary of the document.
The clause also lists the circumstances in which an order from a court to
produce a public document will be taken to have been complied with by an
officer entrusted with the custody of a public document.
Clause 157 Public documents relating to court processes
Evidence of a public document that is a judgment, act or other process of
an Australian court or a foreign court, or that is a document lodged with
an Australian court or a foreign court, may be adduced by producing a
document that purports to be a copy of the public document and that:
(a)
is proved to be an examined copy; or
(b)
purports to be sealed with the seal of that court; or
(c)
purports to be signed by a judge, magistrate, registrar or other
proper officer of that court.
Note for section 157
Section 5 of the Commonwealth Act extends the operation of section 157
of the Commonwealth Act to proceedings in all Australian courts.
Clause 157 Public documents relating to court processes
This clause makes a similar presumption to that in clause 156 in relation to
evidence of public documents relating to court processes that are examined
copies and have been sealed by a court or signed by a judge, magistrate,
registrar or other proper officer.
178
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 158 Evidence of certain public documents
(1)
If:
(a)
a public document, or a certified copy of a public document, of
a State or this or another Territory is admissible for a purpose
in the State or Territory under the law of that State or Territory;
and
(b)
it purports to be sealed, or signed and sealed, or signed
alone, as directed by the law of that State or Territory;
it is admissible in evidence to the same extent and for that purpose
in all Territory courts:
(c)
(d)
(2)
without proof of:
(i)
the seal or signature; or
(ii)
the official character of the person appearing to have
signed it; and
without further proof in every case in which the original
document could have been received in evidence.
A public document of a State or this or another Territory that is
admissible in evidence for any purpose in that State or Territory
under the law of that State or Territory without proof of:
(a)
the seal or signature authenticating the document; or
(b)
the judicial or official character of the person appearing to
have signed the document;
is admissible in evidence to the same extent and for any purpose in
all Territory courts without such proof.
(4)
This section only applies to documents that are public records of a
State or this or another Territory.
Clause 158 Evidence of certain public documents
This clause provides for the admission in Territory courts of a public document
that is a public record of another state or territory to the same extent and for
the same purpose for which it is admissible under a law of that state or
territory.
179
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 159 Official statistics
A document that purports:
(a)
to be published by the Australian Statistician; and
(b)
to contain statistics or abstracts compiled and analysed by the
Australian Statistician under the Census and Statistics Act 1905
(Cth);
is evidence that those statistics or abstracts were compiled and analysed
by the Australian Statistician under that Act.
Note for section 159
Section 5 of the Commonwealth Act extends the operation of section 159
of the Commonwealth Act to proceedings in all Australian courts.
Clause 159 Official statistics
A document containing statistics purporting to be produced by the Australian
Statistician is evidence that those statistics are authentic.
Division 3
Matters relating to post and communications
Clause 160 Postal articles
(1)
It is presumed (unless evidence sufficient to raise doubt about the
presumption is adduced) that a postal article sent by prepaid post
addressed to a person at a specified address in Australia or in an
external Territory was received at that address on the fourth
working day after having been posted.
(2)
This section does not apply if:
(3)
(a)
the proceeding relates to a contract; and
(b)
all the parties to the proceeding are parties to the contract;
and
(c)
subsection (1) is inconsistent with a term of the contract.
In this section:
working day means a day that is not:
(a)
a Saturday or a Sunday; or
(b)
a public holiday or a bank holiday in the place to which the
postal article was addressed.
180
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Note for section 160
Section 182 of the Commonwealth Act gives section 160 of the
Commonwealth Act a wider application in relation to postal articles
sent by a Commonwealth agency.
Clause 160 Postal articles
Unless evidence sufficient to raise doubt is adduced, it is presumed a postal
article sent by pre-paid post addressed to a person at a specified address was
received at that address on the fourth working day (as defined) after posting.
This presumption does not apply in a proceeding between all parties to a
contract in relation to the contract if the presumption is inconsistent with a
term of that contract. The presumption may also be overriden by judicial
notice.
Clause 161 Electronic communications
(1)
(2)
If a document purports to contain a record of an electronic
communication other than one referred to in section 162, it is
presumed (unless evidence sufficient to raise doubt about the
presumption is adduced) that the communication:
(a)
was sent or made in the form of electronic communication that
appears from the document to have been the form by which it
was sent or made; and
(b)
was sent or made by or on behalf of the person by or on
whose behalf it appears from the document to have been sent
or made; and
(c)
was sent or made on the day on which, at the time at which
and from the place from which it appears from the document
to have been sent or made; and
(d)
was received at the destination to which it appears from the
document to have been sent; and
(e)
if it appears from the document that the sending of the
communication concluded at a particular time – was received
at that destination at that time.
A provision of subsection (1) does not apply if:
(a)
the proceeding relates to a contract; and
(b)
all the parties to the proceeding are parties to the contract;
and
181
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(c)
the provision is inconsistent with a term of the contract.
Note for section 161
Section 182 of the Commonwealth Act gives section 161 of the
Commonwealth Act a wider application in relation to
Commonwealth records.
Clause 161 Electronic communications
Unless evidence sufficient to raise a doubt is adduced, a range of
presumptions apply to records of electronic communications.
The
presumptions relate to the mode of communication, the sender, the time and
place of sending and receipt.
Electronic communication is a defined term and embraces all modern
electronic technologies, including telecommunications, as well as facsimile
and telex methods of communication.
The presumptions do not apply in a proceeding between all parties to a
contract in relation to the contract if the presumption is inconsistent with a
term of that contract.
Clause 162 Lettergrams and telegrams
(1)
If a document purports to contain a record of a message
transmitted by means of a lettergram or telegram, it is presumed
(unless evidence sufficient to raise doubt about the presumption is
adduced) that the message was received by the person to whom it
was addressed 24 hours after the message was delivered to a post
office for transmission as a lettergram or telegram.
(2)
This section does not apply if:
(a)
the proceeding relates to a contract; and
(b)
all the parties to the proceeding are parties to the contract;
and
(c)
subsection (1) is inconsistent with a term of the contract.
Note for section 162
Section 182 of the Commonwealth Act gives section 162 of the
Commonwealth Act a wider application in relation to
Commonwealth records.
Clause 162 Lettergrams and telegrams
Unless evidence sufficient to raise doubt is adduced, it is presumed that a
document purporting to contain a record of a message transmitted by
182
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
lettergram or telegram was received by the person to whom it was addressed
24 hours after the message was delivered to a post office for transmission.
This presumption does not apply in a proceeding between all parties to a
contract in relation to the contract if the presumption is inconsistent with a
term of that contract.
Clause 163 Proof of letters having been sent by Commonwealth
agencies
Note for section 163
Section 5 of the Commonwealth Act extends the operation of section 163
of the Commonwealth Act to proceedings in all Australian courts.
Clause 163 Proof of letters having been sent by Commonwealth
agencies
This clause contains no substantive provision. Its inclusion ensures parity in
section numbering with the Commonwealth, Victorian and New South Wales
Acts.
Part 4.4
Corroboration
Clauses 164 and 165 comprise an attempt at a fresh start at the law of
corroboration.
Clause 164 Corroboration requirements abolished
(1)
It is not necessary that evidence on which a party relies be
corroborated.
(2)
Subsection (1) does not affect the operation of a rule of law that
requires corroboration with respect to the offence of perjury or a
similar or related offence.
(3)
Despite any rule, whether of law or practice, to the contrary, but
subject to the other provisions of this Act, if there is a jury, it is not
necessary that the judge:
(a)
warn the jury that it is dangerous to act on uncorroborated
evidence or give a warning to the same or similar effect; or
(b)
give a direction relating to the absence of corroboration.
Clause 164 Corroboration requirements abolished
All common law requirements regarding corroboration of evidence are now
abolished with the exception of the rules relating to perjury. This clause also
183
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
abolishes the common law rules of law or practice requiring a judge to warn a
jury as to dangers of certain categories of uncorroborated evidence. A
judge’s general obligations to give appropriate jury directions and warnings
largely remain, except where they have been otherwise limited as with, for
example, the evidence of children in clause 165A.
Part 4.5
Warnings and information
Clause 165 Unreliable evidence
(1)
(2)
This section applies to evidence of a kind that may be unreliable,
including the following kinds of evidence:
(a)
evidence in relation to which Part 3.2 (Hearsay) or 3.4
(Admissions) applies;
(b)
identification evidence;
(c)
evidence the reliability of which may be affected by age, ill
health (whether physical or mental), injury or the like;
(d)
evidence given in a criminal proceeding by a witness, being a
witness who might reasonably be supposed to have been
criminally concerned in the events giving rise to the
proceeding;
(e)
evidence given in a criminal proceeding by a witness who is a
prison informer;
(f)
oral evidence of questioning by an investigating official of a
defendant that is questioning recorded in writing that has not
been signed, or otherwise acknowledged in writing, by the
defendant;
(g)
in a proceeding against the estate of a deceased person –
evidence adduced by or on behalf of a person seeking relief in
the proceeding that is evidence about a matter about which
the deceased person could have given evidence if he or she
were alive.
If there is a jury and a party so requests, the judge is to:
(a)
warn the jury that the evidence may be unreliable; and
(b)
inform the jury of matters that may cause it to be unreliable;
and
(c)
warn the jury of the need for caution in determining whether to
accept the evidence and the weight to be given to it.
184
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(3)
The judge need not comply with subsection (2) if there are good
reasons for not doing so.
(4)
It is not necessary that a particular form of words be used in giving
the warning or information.
(5)
This section does not affect any other power of the judge to give a
warning to, or to inform, the jury.
(6)
Subsection (2) does not permit a judge to warn or inform a jury in
proceedings before it in which a child gives evidence that the
reliability of the child's evidence may be affected by the age of the
child. Any such warning or information may be given only in
accordance with section 165A(2) and (3).
Clause 165 Unreliable evidence
Evidence coming from a broad category which may be unreliable, including
hearsay, unrecorded admissions, identification evidence, evidence from
accomplices or co-offenders and prison informers, evidence affected by the
age or ill-health of the witness, or evidence from deceased persons, if there is
a jury and a party so requests, the judge is to warn the jury that the evidence
may be unreliable, the matters that may cause it to be unreliable, and warn
the jury of the need for caution when assessing the evidence. No particular
form of words need be used in the warning. If there is no request the judge is
under no obligation to give the warning.
Even though evidence may fall into one of the listed categories however, it
does not necessarily follow that a warning is required, and a judge need not
comply with a request for a warning if the are good reasons not doing so. On
the other hand, if the evidence did fall into one of the categories, and a
warning was requested, there would have to be ‘good reasons’ for not giving
one.
Stephen Odgers considers that there is considerable overlap between the
common law obligation to give a jury warning and the clause 165 obligation to
give a warning in relation to evidence that ‘may be unreliable’. Differences to
be noted, however, are:
(a)
a warning is only required under clause 165 if it is requested, whereas at
common law a duty to warn may arise even if not requested;
(b)
a warning may be required if requested by the prosecution whereas at
common law the focus was on the defendants; and
(c)
clause 165 may require a warning where the common law may have
permitted only a ‘comment’.
There may be situations where a warning is required under the common law
to avoid a miscarriage of justice, for example, where the prosecution case
depends on one witness, where there has been substantial delay in the
185
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
complaint, evidence has not been made available for defence for testing, the
prosecution is relying on conduct of the defendant such as lies told as
consciousness of guilt, the ‘prosecutor’s fallacy’ in relation to DNA evidence,
and other situations too numerous to mention.
The clause prohibits a judge from warning or informing the jury about the
reliability of a child's evidence. It stipulates that any warning about a child's
evidence must be given in accordance with clause 165A.
Importantly, the general power to warn, when the evidence, though not listed
as of a kind that may be unreliable, may be unreliable in the particular
circumstances, is preserved by clause 165(5).
Clause 165A Warnings in relation to children's evidence
(1)
(2)
A judge in any proceeding in which evidence is given by a child
before a jury must not do any of the following:
(a)
warn the jury, or suggest to the jury, that children as a class
are unreliable witnesses;
(b)
warn the jury, or suggest to the jury, that the evidence of
children as a class is inherently less credible or reliable, or
requires more careful scrutiny, than the evidence of adults;
(c)
give a warning, or suggestion to the jury, about the
unreliability of the particular child's evidence solely on account
of the age of the child;
(d)
in the case of a criminal proceeding – give a general warning
to the jury of the danger of convicting on the uncorroborated
evidence of a witness who is a child.
Subsection (1) does not prevent the judge, at the request of a party,
from:
(a)
informing the jury that the evidence of the particular child may
be unreliable and the reasons why it may be unreliable; and
(b)
warning or informing the jury of the need for caution in
determining whether to accept the evidence of the particular
child and the weight to be given to it;
if the party has satisfied the court that there are circumstances
(other than solely the age of the child) particular to the child that
affect the reliability of the child's evidence and that warrant the
giving of a warning or the information.
(3)
This section does not affect any other power of a judge to give a
warning to, or to inform, the jury.
186
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 165A Warnings in relation to children’s evidence.
A judge may warn of about particular factors that may influence the reliability
of children’s evidence, but not about any inherent unreliability.
The clause is included as a result of ALRC 102 (recommendation 18-2), which
refers to research conducted in recent years that demonstrates that children's
cognitive and recall skills are not inherently less reliable than adults.
However, the credibility of children's evidence may be underestimated by
juries. This perception of unreliability is enhanced if a judge gives a general
warning about the unreliability of child witnesses. This clause addresses
these misconceptions and reinforces the policy underpinning clause 165 that
warnings should only be given where the circumstances of the case indicate
they are warranted.
Subclause (1) provides that in any proceeding in which evidence is given by a
child before a jury, a judge is prohibited from warning or suggesting to the
jury:
(a)
that children as a class are unreliable witnesses;
(b)
that the evidence of children as a class is inherently less credible or
reliable, or requires more careful scrutiny, than the evidence of adults;
(c)
that a particular child's evidence is unreliable solely on account of the
age of the child; and
(d)
in criminal proceedings, that it is dangerous to convict on the
uncorroborated evidence of a witness who is a child.
Under subclause (2) a party can request a warning (or information) to be
made in relation to a particular child. If such a request is made, the court
must be satisfied that there are circumstances particular to that child (other
than age) that affect the reliability of the child's evidence and warrant the
giving of a warning or information to the jury. If the court so finds, it can;
(a) inform the jury that the evidence of a particular child may be unreliable
and the reasons for which it may be unreliable; or
(b) warn or inform the jury of the need for caution in determining whether to
accept the evidence of the particular child and the weight to be given to
it.
Subclause (3) provides that this clause does not affect any other power of a
judge to give a warning to, or inform, the jury.
Clause 165B Delay in prosecution
(1)
This section applies in a criminal proceeding in which there is a
jury.
187
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(2)
If the court, on application by the defendant, is satisfied that the
defendant has suffered a significant forensic disadvantage because
of the consequences of delay, the court must inform the jury of the
nature of that disadvantage and the need to take that disadvantage
into account when considering the evidence.
Note for subsection (2)
Subsection (2) differs from the NSW Act.
(3)
The judge need not comply with subsection (2) if there are good
reasons for not doing so.
(4)
It is not necessary that a particular form of words be used in
informing the jury of the nature of the significant forensic
disadvantage suffered and the need to take that disadvantage into
account, but the judge must not in any way suggest to the jury that
it would be dangerous or unsafe to convict the defendant solely
because of the delay or the forensic disadvantage suffered because
of the consequences of the delay.
(5)
The judge must not warn or inform the jury about any forensic
disadvantage the defendant may have suffered because of delay
except in accordance with this section, but this section does not
affect any other power of the judge to give any warning to, or to
inform, the jury.
(6)
For the purposes of this section:
(7)
(a)
delay includes delay between the alleged offence and its
being reported; and
(b)
significant forensic disadvantage is not to be regarded as
being established by the mere existence of a delay.
For the purposes of this section, the factors that may be regarded
as establishing a significant forensic disadvantage include, but
are not limited to, the following:
(a)
the fact that any potential witnesses have died or are not able
to be located;
(b)
the fact that any potential evidence has been lost or is
otherwise unavailable.
Clause 165B Delay in prosecution
This clause regulates warnings to juries in criminal proceedings where a delay
has been found by the court to have resulted in a significant forensic
disadvantage to the defendant.
188
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
The defendant must apply to the judge for a warning to be given. The court
can only give a warning if satisfied that the defendant has in fact suffered a
significant forensic disadvantage and that this is a result of delay.
When giving such a warning, the court must tell the jury about the nature of
the disadvantage and the need to take this into account when considering the
evidence. While no specific words are required to be used in the warning,
subclause (4) makes it clear that the judge is prohibited from suggesting in
any way that it would be dangerous or unsafe to convict the defendant solely
because of the delay or significant forensic disadvantage.
A relevant delay for the purposes of this clause is a lapse in time between the
alleged offence and its being reported. Delay alone is not sufficient to
constitute significant forensic disadvantage. This is different to the common
law which assumes that significant delay creates forensic disadvantage to the
defendant.
Subclause (3) provides that the judge need not give a warning if there are
good reasons for not doing so. This situation would be rare, as jurors are
unlikely to understand forensic disadvantage without assistance.
Clause 165B is intended to replace the common law position on such
warnings enunciated in Longman v The Queen (1989) 168 CLR 79. Warnings
on delay can only be given in accordance with this clause.
Clause 165B(7) specifies some examples of forensic disadvantages that can
be suffered, but it is not a closed list. The Commonwealth and Victorian Acts
do not have this subsection, with the Explanatory Memorandum to the
Commonwealth Act stating that the significant forensic disadvantage arises
not because of the delay itself, but because of the consequences of delay.
Part 4.6
Ancillary provisions
Division 1
Requests to produce documents or call witnesses
Note for Part 4.6, Division 1
Section 182 of the Commonwealth Act gives Part 4.6, Division 1 of the
Commonwealth Act a wider application in relation to Commonwealth
records and certain Commonwealth documents.
This Division sets up a request procedure designed to give protection to
parties against whom hearsay, documentary evidence or evidence of a
conviction may be given.
It provides for a party to make certain requests to another party for the
purpose of determining a question that relates to a previous representation,
evidence of a conviction or the authenticity, identity or admissibility of a
document or thing. The party may make such requests only within the
specified time limits (unless the court gives leave to make them outside those
limits).
189
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 166 Definition of request
In this Division:
request means a request that a party (the requesting party) makes to
another party to do one or more of the following:
(a)
to produce to the requesting party the whole or a part of a specified
document or thing;
(b)
to permit the requesting party, adequately and in an appropriate
way, to examine, test or copy the whole or a part of a specified
document or thing;
(c)
to call as a witness a specified person believed to be concerned in
the production or maintenance of a specified document or thing;
(d)
to call as a witness a specified person in whose possession or
under whose control a specified document or thing is believed to be
or to have been at any time;
(e)
in relation to a document of the kind referred to in paragraph (b) or
(c) of the definition of document in the Dictionary – to permit the
requesting party, adequately and in an appropriate way, to examine
and test the document and the way in which it was produced and
has been kept;
(f)
in relation to evidence of a previous representation – to call as a
witness the person who made the previous representation;
(g)
in relation to evidence that a person has been convicted of an
offence, being evidence to which section 92(2) applies – to call as a
witness a person who gave evidence in the proceeding in which the
person was so convicted.
Clause 166 Definition of request
This clause defines request and includes a request made by a party to
another party for the production, examination, testing, copying of documents
or things; or the calling of witnesses, including a witness who made a previous
representation.
Clause 167 Requests may be made about certain matters
A party may make a reasonable request to another party for the purpose
of determining a question that relates to:
(a)
a previous representation; or
(b)
evidence of a conviction of a person for an offence; or
190
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(c)
the authenticity, identity or admissibility of a document or thing.
Clause 167 Requests may be made about certain matters
A party may make a reasonable request to another party for the purpose of
determining a question that relates to a previous representation, evidence of a
conviction or the authenticity, identity or admissibility of a document or thing.
Clause 168 Time limits for making certain requests
(1)
If a party has given to another party written notice of its intention to
adduce evidence of a previous representation, the other party may
only make a request to the party relating to the representation if the
request is made within 21 days after the notice was given.
(2)
Despite subsection (1), the court may give the other party leave to
make a request relating to the representation after the end of that
21 day period if it is satisfied that there is a good reason to do so.
(3)
If a party has given to another party written notice of its intention to
adduce evidence of a person's conviction of an offence in order to
prove a fact in issue, the other party may only make a request
relating to evidence of the conviction if the request is made within
21 days after the notice is given.
(4)
Despite subsection (3), the court may give the other party leave to
make a request relating to evidence of the conviction after the end
of that 21 day period if it is satisfied that there is good reason to do
so.
(5)
If a party has served on another party a copy of a document that it
intends to tender in evidence, the other party may only make a
request relating to the document if the request is made within
21 days after service of the copy.
(6)
If the copy of the document served under subsection (5) is
accompanied by, or has endorsed on it, a notice stating that the
document is to be tendered to prove the contents of another
document, the other party may only make a request relating to the
other document if the request is made within 21 days after service
of the copy.
(7)
Despite subsections (5) and (6), the court may give the other party
leave to make a request relating to the document, or other
document, after the end of the 21 day period if it is satisfied that
there is good reason to do so.
Clause 168 Time limits for making certain requests
A party has 21 days to make a request, after receiving notice of another
191
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
party's intention to adduce evidence of a previous representation or of a
conviction in order to prove a fact in issue, or to tender a document in
evidence or to prove the contents of another document. The court may give
leave to make such a request after 21 days if there is good reason to do so.
Clause 169 Failure or refusal to comply with requests
(1)
If the party has, without reasonable cause, failed or refused to
comply with a request, the court may, on application, make one or
more of the following orders:
(a)
an order directing the party to comply with the request;
(b)
an order that the party produce a specified document or thing,
or call as a witness a specified person, as mentioned in
section 166;
(c)
an order that the evidence in relation to which the request was
made is not to be admitted in evidence;
(d)
such order with respect to adjournment or costs as is just.
(2)
If the party had, within a reasonable time after receiving the
request, informed the other party that it refuses to comply with the
request, any application under subsection (1) by the other party
must be made within a reasonable time after being so informed.
(3)
The court may, on application, direct that evidence in relation to
which a request was made is not to be admitted in evidence if an
order made by it under subsection (1)(a) or (b) is not complied with.
(4)
Without limiting the circumstances that may constitute reasonable
cause for a party to fail to comply with a request, it is reasonable
cause to fail to comply with a request if:
(5)
(a)
the document or thing to be produced is not available to the
party; or
(b)
the existence and contents of the document are not in issue in
the proceeding in which evidence of the document is
proposed to be adduced; or
(c)
the person to be called as a witness is not available.
Without limiting the matters that the court may take into account in
relation to the exercise of a power under subsection (1), it is to take
into account:
(a)
the importance in the proceeding of the evidence in relation to
which the request was made; and
192
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(b)
whether there is likely to be a dispute about the matter to
which the evidence relates; and
(c)
whether there is a reasonable doubt as to the authenticity or
accuracy of the evidence that is, or the document the contents
of which are, sought to be proved; and
(d)
whether there is a reasonable doubt as to the authenticity of
the document or thing that is sought to be tendered; and
(e)
if the request relates to evidence of a previous
representation – whether there is a reasonable doubt as to the
accuracy of the representation or of the evidence on which it
was based; and
(f)
in the case of a request referred to in paragraph (g) of the
definition of request in section 166 – whether another person
is available to give evidence about the conviction or the facts
that were in issue in the proceeding in which the conviction
was obtained; and
(g)
whether compliance with the request would involve undue
expense or delay or would not be reasonably practicable; and
(h)
the nature of the proceeding.
Note for section 169
Clause 5 of Part 2 of the Dictionary is about the availability of
documents and things, and clause 4 of Part 2 of the Dictionary is
about the availability of persons.
Clause 169 Failure or refusal to comply with requests
If a party, without reasonable cause3, fails or refuses to comply with a request,
the court may order that the party comply with the request, produce a
specified document or thing, or call a specified witness, or that the evidence in
relation to which the request was made not be admitted in evidence.
If a party fails to comply with such an order to produce a specified document
or thing or to call a witness, the court may direct that evidence in relation to
which the request was made is not to be admitted into evidence. The court
may also make orders as to adjournments or costs.
The clause provides examples of circumstances which constitute reasonable
cause for a party to fail to comply with a request and an inclusive list of
matters that the court must take into account in exercising its power to make
orders under the clause. The court may take additional matters into account.
For discussion on “reasonable cause” see Deputy Commissioner of Taxation v Trimcoll Pty Ltd [2005]
NSWSC 1324 @ [55]
3
193
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
The Note to the clause refers to clauses 4 and 5 of Part 2 of the Dictionary
which provides definitions about the availability of persons, documents and
things.
Division 2
Proof of certain matters by affidavits or written
statements
Note for Part 4.6, Division 2
Section 182 of the Commonwealth Act gives Part 4.6, Division 2 of the
Commonwealth Act a wider application in relation to Commonwealth
records and certain Commonwealth documents.
Clause 170 Evidence relating to certain matters
(1)
Evidence of a fact that is, because of a provision of this Act referred
to in the Table, to be proved in relation to a document or thing may
be given by a person permitted under section 171 to give such
evidence.
Provisions of this Act
Subject-matter
Section 48
Proof of contents of documents
Sections 63, 64 and 65
Hearsay exceptions for "first-hand"
hearsay
Section 69
Hearsay
records
Section 70
Hearsay exception for tags, labels
and other writing
Section 71
Hearsay exception for electronic
communications
The provisions of Part 4.3
Facilitation of proof
exception
for
business
Note for subsection (1)
The Table to section 170 of the Commonwealth Act includes a
reference to section 182 (Commonwealth records) of that Act.
(2)
Evidence may be given by affidavit or, if the evidence relates to a
public document, by a written statement.
Clause 170 Evidence relating to certain matters
Evidence relevant to the admissibility of evidence to which specified
provisions of the Bill apply (for example, Part 4.3 relating to facilitation of
proof) may be given by affidavit or, if it relates to a public document, by a
written statement.
194
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 171 Persons who may give such evidence
(1)
(2)
(3)
Such evidence may be given by:
(a)
a person who, at the relevant time or afterwards, had a
position of responsibility in relation to making or keeping the
document or thing; or
(b)
except in the case of evidence of a fact that is to be proved in
relation to a document or thing because of section 63, 64
or 65 – an authorised person.
Despite subsection (1)(b), evidence must not be given under this
section by an authorised person who, at the relevant time or
afterwards, did not have a position of responsibility in relation to
making or keeping the document or thing unless it appears to the
court that:
(a)
it is not reasonably practicable for the evidence to be given by
a person who had, at the relevant time or afterwards, a
position of responsibility in relation to making or keeping the
document or thing; or
(b)
having regard to all the circumstances of the case, undue
expense would be caused by calling such a person as a
witness.
In this section:
authorised person means:
(a)
a person before whom an affidavit may be given on oath and
taken in a country or place outside the Territory under
section 7(2) of the Oaths, Affidavits and Declarations Act; or
(b)
a police officer of or above the rank of sergeant; or
(c)
a person authorised by the Attorney-General for the purposes
of this section.
Note for subsection (3)
The Commonwealth Act, NSW Act and Victorian Act contain a
different definition of authorised person.
Clause 171 Persons who may give such evidence
Such evidence (as specified in clause 170) may be given by a person with
responsibility for making or keeping the relevant document or thing. It may be
given by an authorised person (for example, a person before whom an oath
can be taken outside the state or territory) if it would not be reasonably
195
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
practicable or would cause undue expense for the responsible person to give
the evidence.
Clause 172 Evidence based on knowledge, belief or information
(1)
Despite Chapter 3, the evidence may include evidence based on
the knowledge and belief of the person who gives it, or on
information that that person has.
(2)
An affidavit or statement that includes evidence based on
knowledge, information or belief must set out the source of the
knowledge or information or the basis of the belief.
Clause 172 Evidence based on knowledge belief or information
Evidence of a fact in relation to a document or thing may be given based on
information or on knowledge or belief. An affidavit or statement containing
evidence based on knowledge, information or belief must set out the source of
the knowledge or information or the basis of the belief.
Clause 173 Notification of other parties
(1)
A copy of the affidavit or statement must be served on each party a
reasonable time before the hearing of the proceeding.
(2)
The party who tenders the affidavit or statement must, if another
party so requests, call the deponent or person who made the
statement to give evidence but need not otherwise do so.
Clause 173 Notification of other parties
A copy of any affidavit or statement must be served on each other party a
reasonable time before the hearing. The deponent of the affidavit or maker of
the statement must be called to give evidence if another party so requests.
Division 3
Foreign law
This Division facilitates proof of foreign law.
Clause 174 Evidence of foreign law
(1)
Evidence of a statute, proclamation, treaty or act of state of a
foreign country may be adduced in a proceeding by producing:
(a)
a book or pamphlet, containing the statute, proclamation,
treaty or act of state, that purports to have been printed by the
government or official printer of the country or by the authority
196
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
of the government or administration of the country; or
(2)
(b)
a book or other publication, containing the statute,
proclamation, treaty or act of state, that appears to the court to
be a reliable source of information; or
(c)
a book or pamphlet that is or would be used in the courts of
the country to inform the courts about, or prove, the statute,
proclamation, treaty or act of state; or
(d)
a copy of the statute, proclamation, treaty or act of state that is
proved to be an examined copy.
A reference in this section to a statute of a foreign country includes
a reference to a regulation or by-law of the country.
Clause 174 Evidence of Foreign law
This clause provides for the proof of the statutory law, treaties or acts of state
of foreign countries.
Clause 175 Evidence of law reports of foreign countries
(1)
Evidence of the unwritten or common law of a foreign country may
be adduced by producing a book containing reports of judgments of
courts of the country if the book is or would be used in the courts of
the country to inform the courts about the unwritten or common law
of the country.
(2)
Evidence of the interpretation of a statute of a foreign country may
be adduced by producing a book containing reports of judgments of
courts of the country if the book is or would be used in the courts of
the country to inform the courts about the interpretation of the
statute.
Clause 175 Evidence of law reports of foreign countries
This clause provides for the proof of the case law of foreign countries. The
operation of clauses 174 and 175 was considered in Optus Networks Pty Ltd
v Gilsan (International) Ltd [2006] NSWCA 171.
Clause 176 Questions of foreign law to be decided by judge
If, in a proceeding in which there is a jury, it is necessary to ascertain the
law of another country which is applicable to the facts of the case, any
question as to the effect of the evidence adduced with respect to that law
is to be decided by the judge alone.
197
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 176 Questions of foreign law to be decided by judge
Questions as to the effect of foreign law are to be decided by the judge.
Division 4
Procedures for proving other matters
Clause 177 Certificates of expert evidence
(1)
(2)
(3)
Evidence of a person's opinion may be adduced by tendering a
certificate (expert certificate) signed by the person that:
(a)
states the person's name and address; and
(b)
states that the person has specialised knowledge based on
his or her training, study or experience as specified in the
certificate; and
(c)
sets out an opinion that the person holds and that is
expressed to be wholly or substantially based on that
knowledge.
Subsection (1) does not apply unless the party seeking to tender
the expert certificate has served on each other party:
(a)
a copy of the certificate; and
(b)
a written notice stating that the party proposes to tender the
certificate as evidence of the opinion.
Service must be effected not later than:
(a)
21 days before the hearing; or
(b)
if, on application by the party before or after service, the court
substitutes a different period – the beginning of that period.
(4)
Service for the purposes of subsection (2) may be proved by
affidavit.
(5)
A party on whom the documents referred to in subsection (2) are
served may, by written notice served on the party proposing to
tender the expert certificate, require the party to call the person who
signed the certificate to give evidence.
(6)
The expert certificate is not admissible as evidence if such a
requirement is made.
(7)
The court may make such order with respect to costs as it
considers just against a party who has, without reasonable cause,
required a party to call a person to give evidence under this section.
198
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 177 Certificates of expert evidence
This clause provides a procedure for adducing expert evidence without having
to produce the expert. This can be for both civil and criminal proceedings.
The expert's opinion may be given by certificate. The party tendering an
expert certificate must serve notice of it and a copy of the certificate on each
other party 21 days before the hearing, or such other period determined by
the court on application by a party. A party so served can require the expert
to be called as a witness.
Clause 178 Convictions, acquittals and other judicial proceedings
(1)
(2)
This section applies to the following facts:
(a)
the conviction or acquittal before or by an applicable court of a
person charged with an offence;
(b)
the sentencing of a person to any punishment or pecuniary
penalty by an applicable court;
(c)
an order by an applicable court;
(d)
the pendency or existence at any time before an applicable
court of a civil or criminal proceeding.
Evidence of a fact to which this section applies may be given by a
certificate signed by a judge, a magistrate or registrar or other
proper officer of the applicable court:
(a)
showing the fact, or purporting to contain particulars, of the
record, indictment, conviction, acquittal, sentence, order or
proceeding in question; and
(b)
stating the time and place of the conviction, acquittal,
sentence, order or proceeding; and
(c)
stating the title of the applicable court.
(3)
A certificate given under this section showing a conviction,
acquittal, sentence or order is also evidence of the particular
offence or matter in respect of which the conviction, acquittal,
sentence or order was had, passed or made, if stated in the
certificate.
(4)
A certificate given under this section showing the pendency or
existence of a proceeding is also evidence of the particular nature
and occasion, or ground and cause, of the proceeding, if stated in
the certificate.
199
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(5)
A certificate given under this section purporting to contain
particulars of a record, indictment, conviction, acquittal, sentence,
order or proceeding is also evidence of the matters stated in the
certificate.
(6)
In this section:
acquittal includes the dismissal of the charge in question by an
applicable court.
applicable court means an Australian court or a foreign court.
Note for section 178
Section 91 excludes evidence of certain judgments and convictions.
Clause 178 Convictions, acquittals and other judicial proceedings
Evidence can be adduced by certificate of the fact of convictions, acquittals,
sentence, court orders or the pendency or existence of a civil or criminal
proceeding.
Clause 179 Proof of identity of convicted persons – affidavits by
members of State or Territory police forces
(1)
(2)
(3)
This section applies if a member of a police force of a State or
Territory:
(a)
makes an affidavit in the form prescribed by the regulations for
the purposes of this section; and
(b)
states in the affidavit that he or she is a fingerprint expert for
that police force.
For the purpose of proving before a court the identity of a person
alleged to have been convicted in that State or Territory of an
offence, the affidavit is evidence in a proceeding that the person
whose fingerprints are shown on a fingerprint card referred to in the
affidavit and marked for identification:
(a)
is the person referred to in a certificate of conviction, or
certified copy of conviction annexed to the affidavit, as having
been convicted of an offence; and
(b)
was convicted of that offence; and
(c)
was convicted of any other offence of which he or she is
stated in the affidavit to have been convicted.
For the purposes of this section, if a Territory does not have its own
200
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
police force, the police force performing the policing functions of the
Territory is taken to be the police force of the Territory.
Clause 179 Proof of identity of convicted persons – affidavits by
members of State or Territory police forces
This clause provides for proof of the identity of a person alleged to have been
convicted of an offence to be adduced by an affidavit of a fingerprint expert of
the police force of the relevant state or territory.
Clause 180 Proof of identity of convicted persons – affidavits by
members of Australian Federal Police
(1)
(2)
This section applies if a member of the Australian Federal Police:
(a)
makes an affidavit in the form prescribed by the regulations for
the purposes of this section; and
(b)
states in the affidavit that he or she is a fingerprint expert for
the Australian Federal Police.
For the purpose of proving before a court the identity of a person
alleged to have been convicted of an offence against a law of the
Commonwealth, the affidavit is evidence in a proceeding that the
person whose fingerprints are shown on a fingerprint card referred
to in the affidavit and marked for identification:
(a)
is the person referred to in a certificate of conviction, or
certified copy of conviction annexed to the affidavit, as having
been convicted of an offence; and
(b)
was convicted of that offence; and
(c)
was convicted of any other offence of which he or she is
stated in the affidavit to have been convicted.
Clause 180 Proof of identity of convicted persons – affidavits by
members of Australian Federal Police
Proof of the identity of a person alleged to have been convicted of an offence
against a law of the Commonwealth may be adduced by an affidavit of a
fingerprint expert of the Australian Federal Police.
Clause 181 Proof of service of statutory notifications, notices, orders
and directions
(1)
The service, giving or sending under an Australian law of a written
notification, notice, order or direction may be proved by affidavit of
201
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
the person who served, gave or sent it.
(2)
A person who, for the purposes of a proceeding, makes an affidavit
referred to in this section is not, because of making the affidavit,
excused from attending for cross-examination if required to do so
by a party to the proceeding.
Clause 181 Proof of service of statutory notifications, notices, orders
and directions
Proof of the service, giving or sending under an Australian law, of written
notification, notices, orders and direction may be proved by affidavit of the
person who served, gave or sent it.
202
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Chapter 5
Miscellaneous matters
Clause 182 Application of certain sections in relation to Commonwealth
records
Note for section 182
The Commonwealth Act includes a provision that extends the operation
of certain provisions of the Commonwealth Act to Commonwealth
records.
Clause 182 Application of certain sections in relation to Commonwealth
records
This clause contains no substantive provision. Its inclusion ensures parity in
numbering with the Commonwealth, NSW and Victorian Acts.
Clause 183 Inferences
If a question arises about the application of a provision of this Act in
relation to a document or thing, the court may:
(a)
examine the document or thing; and
(b)
draw any reasonable inferences from it as well as from other
matters from which inferences may properly be drawn.
Note for section 183
Section 182 of the Commonwealth Act gives section 183 of the
Commonwealth Act a wider application in relation to Commonwealth
records and certain Commonwealth documents.
Clause 183 Inferences
A court may examine a document or thing in respect of which a question has
arisen in relation to the application of the Bill and to draw reasonable
inferences from the document or thing.
Clause 184 Accused may admit matters and give consents
(1)
In or before a criminal proceeding, a defendant may:
(a)
admit matters of fact; and
(b)
give any consent;
that a party to a civil proceeding may make or give.
203
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(2)
A defendant's admission or consent is not effective for the purposes
of subsection (1) unless:
(a)
the defendant has been advised to do so by the defendant's
Australian legal practitioner or legal counsel; or
(b)
the court is satisfied that the defendant understands the
consequences of making the admission or giving the consent.
Clause 184 Accused may admit matters and give consents
A defendant in or before a criminal proceeding may make any admissions and
give any consent that a party to a civil proceeding can make. A defendant's
consent will not be effective in criminal proceedings unless he or she has
been advised to consent by his or her lawyer, or if the court is satisfied that
the defendant appreciates the consequences of doing so.
Formal admission of a fact does not, however, preclude evidence being
adduced of the fact.
Clause 185 Full faith and credit to be given to documents properly
authenticated
Note for section 185
The Commonwealth Act includes a provision requiring full faith and credit
to be given to the public acts, records and judicial proceedings of a State
or Territory.
Clause 185 Full faith and credit to be given to documents properly
authenticated
This clause contains no substantive provisions. Its inclusion ensures parity in
section numbering with the Commonwealth, NSW and Victorian Acts.
Clause 186 Swearing of affidavits
Note for section 186
The Commonwealth Act includes a provision about swearing of affidavits
before justices of the peace, notaries public and lawyers for use in court
proceedings involving the exercise of federal jurisdiction and in courts of
a Territory.
Clause 186 Swearing of affidavits
This clause contains no substantive provision, however a Note to the clause
refers to the Commonwealth Act including a provision about swearing of
affidavits before justices of the peace, notaries public and lawyers for use in
204
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
court proceedings involving the exercise of federal jurisdiction and in courts of
a territory.
Clause 187 No privilege against self-incrimination for bodies corporate
(1)
(2)
This section applies if, under a law of the Territory or in a
proceeding, a body corporate is required to:
(a)
answer a question or give information; or
(b)
produce a document or any other thing, or
(c)
do any other act whatever.
The body corporate is not entitled to refuse or fail to comply with the
requirement on the ground that answering the question, giving the
information, producing the document or other thing or doing that
other act, as the case may be, might tend to incriminate the body or
make the body liable to a penalty.
Note for section 187
This section differs from the Commonwealth Act, NSW Act and
Victorian Act.
Clause 187 No privilege against self incrimination for bodies corporate
For the purposes of a law of the Territory a body corporate does not have a
privilege against self incrimination. As in the common law however, an officer
of a corporation, if called as a witness, may claim a personal privilege but not
claim the privilege on behalf of the corporation, on the basis that the answer
would tend to incriminate the corporation.
Clause 188 Impounding documents
The court may direct that a document that has been tendered or
produced before the court (whether or not it is admitted in evidence) is to
be impounded and kept in the custody of an officer of the court or of
another person for such period, and subject to such conditions, as the
court thinks fit.
Clause 188 Impounding documents
A court may impound documents tendered or produced before the court.
Clause 189 The voir dire
(1)
If the determination of a question whether:
205
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(a)
evidence should be admitted (whether in the exercise of a
discretion or not); or
(b)
evidence can be used against a person; or
(c)
a witness is competent or compellable;
depends on the court finding that a particular fact exists, the
question whether that fact exists is, for the purposes of this section,
a preliminary question.
(2)
If there is a jury, a preliminary question whether:
(a)
particular evidence is evidence of an admission, or evidence
to which section 138 (Exclusion of improperly or illegally
obtained evidence) applies; or
(b)
evidence of an admission, or evidence to which section 138
applies, should be admitted;
is to be heard and determined in the jury's absence.
(3)
In the hearing of a preliminary question about whether a
defendant's admission should be admitted into evidence (whether
in the exercise of a discretion or not) in a criminal proceeding, the
issue of the admission's truth or untruth is to be disregarded unless
the issue is introduced by the defendant.
(4)
If there is a jury, the jury is not to be present at a hearing to decide
any other preliminary question unless the court so orders.
(5)
Without limiting the matters that the court may take into account in
deciding whether to make such an order, it is to take into account:
(a)
whether the evidence to be adduced in the course of that
hearing is likely to be prejudicial to the defendant; and
(b)
whether the evidence concerned will be adduced in the course
of the hearing to decide the preliminary question; and
(c)
whether the evidence to be adduced in the course of that
hearing would be admitted if adduced at another stage of the
hearing (other than in another hearing to decide a preliminary
question or, in a criminal proceeding, a hearing in relation to
sentencing).
(6)
Section 128(10) does not apply to a hearing to decide a preliminary
question.
(7)
In the application of Chapter 3 to a hearing to determine a
preliminary question, the facts in issue are taken to include the fact
206
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
to which the hearing relates.
(8)
If a jury in a proceeding was not present at a hearing to determine a
preliminary question, evidence is not to be adduced in the
proceeding of evidence given by a witness at the hearing unless:
(a)
it is inconsistent with other evidence given by the witness in
the proceeding; or
(b)
the witness has died.
Clause 189 The voir dire
This clause applies to both civil and criminal proceedings, and sets out the
circumstances in which a voir dire is to be held. These include questions as
to whether evidence should be admitted or can be used against a person and
as to whether a witness is competent or compellable.
There is no right to a voir dire and the court must be satisfied that there is an
issue requiring the proceeding. Whether a voir dire should occur is a matter
for the common law.
Clause 189(6) ensures a defendant testifying in a voir dire may rely on the
privilege against self incrimination.
Clause 190 Waiver of rules of evidence
(1)
The court may, if the parties consent, by order dispense with the
application of any one or more of the provisions of:
(a)
Part 2.1, Division 3, 4 or 5; or
(b)
Part 2.2 or 2.3; or
(c)
Parts 3.2 to 3.8;
in relation to particular evidence or generally.
(2)
(3)
In a criminal proceeding, a defendant's consent is not effective for
the purposes of subsection (1) unless:
(a)
the defendant has been advised to do so by the defendant's
Australian legal practitioner or legal counsel; or
(b)
the court is satisfied that the defendant understands the
consequences of giving the consent.
In a civil proceeding, the court may order that any one or more of
the provisions mentioned in subsection (1) do not apply in relation
to evidence if:
207
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(4)
(a)
the matter to which the evidence relates is not genuinely in
dispute; or
(b)
the application of those provisions would cause or involve
unnecessary expense or delay.
Without limiting the matters that the court may take into account in
deciding whether to exercise the power conferred by subsection (3),
it is to take into account:
(a)
the importance of the evidence in the proceeding; and
(b)
the nature of the cause of action or defence and the nature of
the subject-matter of the proceeding; and
(c)
the probative value of the evidence; and
(d)
the powers of the court (if any) to adjourn the hearing, to make
another order or to give a direction in relation to the evidence.
Clause 190 Waiver of rules of evidence
The court, with the consent of the parties, may waive the rules relating to the
manner of giving evidence, the exclusionary rules and the rules relating to the
method of proof of documents. It may reasonably be inferred that other
provisions of the Bill may not be waived and must be applied.
A defendant's consent will not be effective in a criminal proceeding unless he
or she has been advised to consent by his or her lawyer, or the court is
satisfied that the defendant understands the consequences of the consent.
The clause also enables a court to make such orders in civil proceedings
without the consent of the parties if the matter to which the evidence relates is
not genuinely in dispute, or if the application of those rules would cause
unnecessary expense or delay.
Clause 191 Agreements as to facts
(1)
In this section:
agreed fact means a fact that the parties to a proceeding have
agreed is not, for the purposes of the proceeding, to be disputed.
(2)
In a proceeding:
(a)
evidence is not required to prove the existence of an agreed
fact; and
(b)
evidence may not be adduced to contradict or qualify an
agreed fact;
208
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
unless the court gives leave.
(3)
Subsection (2) does not apply unless the agreed fact:
(a)
is stated in an agreement in writing signed by the parties or by
Australian legal practitioners, legal counsel or prosecutors
representing the parties and adduced in evidence in the
proceeding; or
(b)
with the leave of the court, is stated by a party before the court
with the agreement of all other parties.
Clause 191 Agreements as to facts
This clause applies where the parties to a proceeding have agreed that, for
the purposes of the proceeding, a fact is not to be disputed in the proceeding.
If the agreement is in writing, signed by or for all the parties or, by leave of the
court, stated before the court with the agreement of all parties, evidence may
not be adduced to prove, rebut or qualify an agreed fact, unless the court
gives leave.
Evidence that supplements or elaborates on agreed facts does not ‘contradict
or qualify’ an agreed fact.
Clause 192 Leave, permission or direction may be given on terms
(1)
If, because of this Act, a court may give any leave, permission or
direction, the leave, permission or direction may be given on such
terms as the court thinks fit.
(2)
Without limiting the matters that the court may take into account in
deciding whether to give the leave, permission or direction, it is to
take into account:
(a)
the extent to which to do so would be likely to add unduly to,
or to shorten, the length of the hearing; and
(b)
the extent to which to do so would be unfair to a party or to a
witness; and
(c)
the importance of the evidence in relation to which the leave,
permission or direction is sought; and
(d)
the nature of the proceeding; and
(e)
the power (if any) of the court to adjourn the hearing or to
make another order or to give a direction in relation to the
evidence.
209
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 192 Leave, permission or directions may be given on terms
This clause complements clauses of the Bill enabling a court to give any
leave, permission or direction on such terms as it thinks. The clause sets out
some of the matters the court must take into account (for example, the extent
to which to do so would unduly lengthen the hearing, and the importance of
the evidence that is to be led). The court may take additional matters into
account.
This discretion to grant leave overlaps with the general discretion to exclude
evidence in clauses 135 and 137.
Clause 192A Advance rulings and findings
Where a question arises in any proceedings, being a question about:
(a)
the admissibility or use of evidence proposed to be adduced; or
(b)
the operation of a provision of this Act or another law in relation to
evidence proposed to be adduced; or
(c)
the giving of leave, permission or direction under section 192;
the court may, if it considers it to be appropriate to do so, give a ruling or
make a finding in relation to the question before the evidence is adduced
in the proceedings.
Clause 192A Advance rulings and findings
This clause addresses the finding of the High
Court in
TKWJ v The Queen (2002) 212 CLR 124 that the UEA only permits an
advance ruling to be made in cases where the UEA requires leave,
permission or direction to be sought, but not to be made in relation to the
exercise of ‘discretions’.
ALRC 102 concluded that a broader power to make advance warnings was
important as it carries significant benefits in promoting the efficiency of trials.
This clause provides that the court may, if it considers it appropriate, give an
advance ruling or make an advance finding in relation to the admissibility of
evidence and other evidentiary questions.
Paragraph (c) makes clear that the court may also make an advance ruling or
finding in relation to the giving of leave, permission or directions under clause
192.
210
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 193 Additional powers
(1)
The powers of a court in relation to:
(a)
the discovery or inspection of documents; and
(b)
ordering disclosure and exchange of evidence, intended
evidence, documents and reports;
extend to enabling the court to make such orders as the court
thinks fit (including orders about methods of inspection,
adjournments and costs) to ensure that the parties to a proceeding
can adequately, and in an appropriate manner, inspect documents
of the kind referred to in paragraph (b) or (c) of the definition of
document in the Dictionary.
(2)
The power of a person or body to make rules of courts extends to
making rules, not inconsistent with this Act or the regulations,
prescribing matters:
(a)
required or permitted by this Act to be prescribed; or
(b)
necessary or convenient to be prescribed for carrying out or
giving effect to this Act.
(3)
Without limiting subsection (2), rules made under that subsection
may provide for the discovery, exchange, inspection or disclosure
of intended evidence, documents and reports of persons intended
to be called by a party to give evidence in a proceeding.
(4)
Without limiting subsection (2), rules made under that subsection
may provide for the exclusion of evidence, or for its admission on
specified terms, if the rules are not complied with.
Clause 193 Additional powers
A court may make orders to ensure that a party can adequately inspect
documents that require interpretation by a qualified person or from which
sounds, images or writing can be reproduced. The clause also extends the
power of a person or body to make rules of court in relation to the discovery,
exchange, inspection or disclosure of intended evidence, documents and
reports of persons intended to be called to give evidence. It is designed to
extend the discovery rules to “tapes, discs, microfilms and other media”.
Clause 194 Witnesses failing to attend proceedings
(1)
If, in a civil or criminal proceeding, a witness fails to appear when
called and it is proved that the witness has been:
(a)
bound over to appear; or
211
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(b)
duly bound by recognisance or undertaking to appear; or
(c)
served with a summons or subpoena to attend and a
reasonable sum of money has been provided to the witness
for his or her costs in so attending;
the court may:
(2)
(d)
issue a warrant to apprehend the witness and bring him or her
before the court; or
(e)
order the witness to pay a fine of not more than 5 penalty
units; or
(f)
take any other action against the witness that is permitted by
law.
If a subpoena or summons has been issued for the attendance of a
witness on the hearing of a civil or criminal proceeding and it is
proved, on application by the party seeking to compel his or her
attendance, that the witness:
(a)
is avoiding service of the subpoena or summons; or
(b)
has been duly served with the subpoena or summons but is
unlikely to comply with it;
the court may issue a warrant to apprehend the witness and bring
the witness before the court.
(3)
In issuing a warrant under this section, the court may endorse the
warrant with a direction that the person must, on arrest, be released
on bail as specified in the endorsement.
(4)
An endorsement under subsection (3) must fix the amounts in
which the principal and the sureties (if any) are bound and the
amount of any money or the value of any security to be deposited.
(5)
The person to whom the warrant to arrest is directed must cause
the person named or described in the warrant when arrested:
(6)
(a)
to be released on bail in accordance with any endorsement on
the warrant; or
(b)
if there is no endorsement on the warrant, to be brought
before the court which issued the warrant; or
(c)
to be discharged from custody on bail in accordance with the
Bail Act.
Matters may be proved under this section orally or by affidavit.
212
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(7)
A witness, who under subsection (1)(e) has been ordered to pay a
fine, is not exempted from any other proceedings for disobeying the
subpoena or summons.
Note for section 194
This section differs from the NSW Act. The Commonwealth Act
does not include an equivalent provision to section 194. There are
provisions to the same effect in federal court rules and Australian
Capital Territory legislation applying to proceedings before federal
courts and Australian Capital Territory courts.
Clause 194 Witnesses failing to attend proceedings
The clause provides powers for the court to issue a warrant to bring a witness
before the court who has failed to attend court, including circumstances where
the court is satisfied that the witness is avoiding service or is unlikely to
attend.
A Note to the clause provides that this clause differs from the
New South Wales Act and that the Commonwealth Act does not include such
a provision.
The onus is on the party seeking the issue of a warrant to satisfy the court
that the witness has no just cause or reasonable excuse.
Clause 195 Prohibited question not to be published
(1)
A person must not, without the express permission of a court, print
or publish:
(a)
any question that the court has disallowed under section 41
(Improper questions); or
(b)
any question that the court has disallowed because any
answer that is likely to be given to the question would
contravene the credibility rule; or
(c)
any question in respect of which the court has refused to give
leave under Part 3.7 (Credibility).
Maximum penalty:
(2)
60 penalty units.
An offence against subsection (1) is an offence of strict liability.
Clause 195 Prohibited questions not to be published
It is an offence to print or publish (without express court permission) an
improper question (see clause 41), or any question disallowed by the court
because the answer would contravene the credibility rule (Part 3.7) or any
213
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
question in respect of which leave has been refused under Part 3.7. This is a
strict liability offence and has a maximum penalty of 60 penalty units.
Clause 196 Proceedings for offences
A proceeding for an offence against this Act are to be dealt with
summarily before the Court of Summary Jurisdiction.
Note for section 196
The Commonwealth Act does not include an equivalent provision to
section 196.
Clause 196 Proceedings for offences
Proceedings for an offence against the Act or the regulations are to be dealt
with summarily.
Clause 197 Regulations
(1)
The Administrator may make regulations under this Act.
(2)
A regulation may:
(a)
for an offence against a regulation, prescribe a fine not
exceeding 200 penalty units; or
(b)
provide for an offence against a regulation to be an offence of
strict or absolute liability but not with a penalty exceeding
100 penalty units.
Note for section 197
This section differs from the Commonwealth Act and NSW Act.
Clause 197 Regulations
The Administrator may make regulations under the Act.
Chapter 6
Transitional matters for Evidence (National Uniform
Legislation) Act 2011
Clauses 3 and 4 add a new Chapter 6: Transitional matters for Evidence
(National Uniform Legislation) Act 2011 to that Act.
The transitional provisions will provide that the new Act applies to any
proceedings commenced after the commencement day. In the case of a
proceeding that began before the commencement day, the new Act applies to
that part of the proceeding that takes place after the commencement day,
214
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
other than any hearing that began before the commencement day. For these
hearings, the old Act continues to apply to the hearing until it is completed.
Clause 198 Definitions
In this Chapter:
commencement day means the day on which section 4 commences.
Clause 199 Application of this Act on commencement day
(1)
Except as otherwise provided by this Chapter, this Act applies to a
proceeding commenced on or after the commencement day.
(2)
Except as otherwise provided by this Chapter, if a proceeding
commenced before the commencement day, this Act applies to that
part of the proceeding that takes place on or after the
commencement day, other than any hearing in the proceeding that
commenced before the commencement day and:
(a)
continued on or after the commencement day; or
(b)
was adjourned until the commencement day or a day after the
commencement day.
Clause 200 Application of section 128A
Section 128A does not apply in relation to an order made before the
commencement day that would, if it were made after the commencement
day, be a disclosure order as defined in that section.
Clause 201 Application of Part 3.10 to disclosure requirements
(1)
(2)
Part 3.10 does not apply in relation to:
(a)
a process or order of a court that requires the disclosure of
information or a document issued or ordered before the
commencement day that would, if it were issued or ordered
after the commencement day, be a disclosure requirement as
defined in section 131A; or
(b)
a summons or subpoena issued on or after the
commencement day to give evidence or produce documents
at a hearing to which section 199(2)(a) or (b) applies.
Despite subsection (1)(a), Part 3.10 applies to a summons or
215
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
subpoena to give evidence issued before the commencement day if
the evidence is to be given at a hearing to which this Act applies.
Clause 202 Identifications already carried out
(1)
Section 114 does not apply in relation to an identification made
before the commencement day.
(2)
Section 115 does not apply in relation to an identification made
before the commencement day.
Clause 203 Documents and evidence produced before commencement
day by processes, machines and other devices
(1)
Section 146 has effect on and after the commencement day in
relation to the production of a document or thing that occurred
before the commencement day.
(2)
Section 147 has effect on and after the commencement day in
relation to the production of a document that occurred before the
commencement day.
Clause 204 Documents attested and verified before commencement day
(1)
Section 148 has effect on and after the commencement day in
relation to the attestation, verification, signing or acknowledgement
of a document that occurred before the commencement day.
(2)
Section 149 has effect on and after the commencement day in
relation to the signing or attestation of a document that occurred
before the commencement day.
Clause 205 Matters of official record published before commencement
day
(1)
Section 153 has effect on and after the commencement day in
relation to the publication of a document referred to in that section
that occurred before the commencement day.
(2)
Section 154 has effect on and after the commencement day in
relation to the publication of a document referred to in that section
that occurred before the commencement day.
216
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(3)
Section 155 has effect on and after the commencement day in
relation to the signing or sealing or certification of a document
referred to in that section that occurred before the commencement
day.
(4)
Section 156 has effect on and after the commencement day in
relation to the sealing or certification of a document referred to in
that section that occurred before the commencement day.
(5)
Section 157 has effect on and after the commencement day in
relation to the sealing or signing of a document referred to in that
section that occurred before the commencement day.
(6)
Section 158 has effect on and after the commencement day in
relation to the sealing or signing and sealing of a public document
referred to in that section that occurred before the commencement
day.
(7)
Section 159 has effect on and after the commencement day in
relation to the publication of a document referred to in that section
that occurred before the commencement day.
Clause 206 Agreed facts
The reference in section 191(3)(a) to an agreement is taken on and after
the commencement day to include a reference to an agreement entered
into before the commencement day.
Clause 207 Application of Act to improperly or illegally obtained
evidence
Section 139 does not apply in relation to a statement made or an act
done before the commencement day.
Clause 208 Notification provisions
(1)
If, before the commencement day, a document of a kind referred to
in a notification provision is given or served:
(a)
in the circumstances provided for in that provision; and
(b)
in accordance with such requirements (if any) as would apply
to the giving or serving of the document under that provision
on and after its commencement;
on and after the commencement day the document is taken to have
been given or served in accordance with that provision.
217
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(2)
The following sections are notification provisions for the
purposes of subsection (1):
(a)
section 33(2)(c);
(b)
section 49(a);
(c)
section 50(2)(a);
(d)
section 67(1);
(e)
section 68(2);
(f)
section 73(2)(b);
(g)
section 97(1)(a);
(h)
section 98(1)(b);
(i)
section 168(1), (3), (5) and (6);
(j)
section 173(1);
(k)
section 177(2) and (5).
Clause 209 Notice of intention to adduce hearsay evidence
If a notice given before the commencement day is taken, by the
operation of section 208, to have been given under section 67(1), the
period for an objection to be made under section 68 to the tender of
evidence to which the notice relates is the later of the period ending:
(a)
7 days after the commencement day; or
(b)
21 days after the notice was given to the party concerned.
Clause 210 Notice of intention to adduce evidence as to tendency or
coincidence
(1)
References in sections 97(1)(a) and 98(1)(a) to giving notice are
taken to include references to giving notice of the kind referred to in
those sections before the commencement day.
(2)
Despite section 208(1)(b), a notice of a kind referred to in
section 97 or 98 given before the commencement day is taken to
have been given in accordance with any regulations or rules made
for the purposes for section 99.
218
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Clause 211 Time limits for making requests
(1)
A request made before the commencement day that would, if it
were made after the commencement day, be a request under
section 167 is taken to be such a request.
(2)
If a notice given before the commencement day is taken, by the
operation of section 208, to have been given under section 168(1)
or (3), the period for a request to be made under section 168(1)
or (3) is the later of the period ending:
(3)
(4)
(a)
7 days after the commencement day; or
(b)
21 days after the notice was given to the party concerned.
If a copy of a document served before the commencement day is
taken, by the operation of section 208, to have been served under
section 168(5) or (6), the period for a request to be made under
section 168(5) or (6) is the later of the period ending:
(a)
7 days after the commencement day; or
(b)
21 days after the document was served on the party
concerned.
If a request made under section 168 was received before the
commencement day, in determining what is a reasonable time after
receiving a request for the purposes of section 169(2), the court
may take into account time passed before the commencement day.
Clause 212 Requests under section 173
A request made before the commencement day that would, if it were
made after the commencement day, be a request under section 173(2) is
taken to be such a request.
Clause 213 Transitional regulations
(1)
A regulation may provide for a matter of a transitional nature:
(a)
because of the enactment of this Act or the Evidence
(National Uniform Legislation) (Consequential Amendments)
Act 2012; or
(b)
to otherwise allow or facilitate the transition:
(i)
from the Evidence Act as in force immediately before the
commencement day;
219
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(ii)
to this Act and the Evidence Act as amended by the
Evidence (National Uniform Legislation) (Consequential
Amendments) Act 2012.
(2)
The regulation may have retrospective operation to a day not earlier
than the commencement day.
(3)
However, to the extent to which the regulation has retrospective
operation, it does not operate to the disadvantage of a person
(other than the Territory or a Territory authority) by:
(a)
decreasing the person's rights; or
(b)
imposing liabilities on the person.
(4)
The regulation must declare it is made under this section.
(5)
This section, and each regulation made under it, expires 1 year
after the commencement day.
Schedule
Oaths and affirmation
Note for Schedule
The Commonwealth Act, NSW Act and Victorian Act contain a schedule,
which is not required for the Territory because of the provisions in the
Oaths, Affidavits and Declarations Act.
Dictionary
section 3
Part 1
Definitions
admission means a previous representation that is:
(a)
made by a person who is or becomes a party to a proceeding
(including a defendant in a criminal proceeding); and
(b)
adverse to the person's interest in the outcome of the proceeding.
asserted fact, see section 59.
associated defendant, in relation to a defendant in a criminal
proceeding, means a person against whom a prosecution has been
instituted, but not yet completed or terminated, for:
(a)
an offence that arose in relation to the same events as those in
relation to which the offence for which the defendant is being
prosecuted arose; or
(b)
an offence that relates to or is connected with the offence for which
the defendant is being prosecuted.
220
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Australia includes the external Territories.
Australian court means:
(a)
the High Court; or
(b)
a court exercising federal jurisdiction; or
(c)
a court of a State or Territory; or
(d)
a judge, justice or arbitrator under an Australian law; or
(e)
a person or body authorised by an Australian law, or by consent of
parties, to hear, receive and examine evidence; or
(f)
a person or body that, in exercising a function under an Australian
law, is required to apply the laws of evidence.
An ‘Australian Court’ has been held to include the Refugee Review Tribunal
as it is ‘a body that is authorised by an Australian law, the Migration Act 1958,
to hear, receive and examine evidence’ even though the proceedings were
not adversarial and, in fact, could best be described as inquisitorial. The
Tribunal is, however, required to provide a review mechanism that is, among
other things, ‘fair’.
In Ryan v Watkins [2005] NSWCA 426 Campbell AJA decided that ‘the
person or body would not be one whose role was purely investigatory’ and the
procedures followed by a Medical Assessor were held not to be ‘proceedings
in an Australian Court’. The person or body that is an ‘Australian Court’ must
be independent of executive or administrative oversight in decision making
and must be bound by the rules of procedural fairness.
Australian law means a law of the Commonwealth, a State or Territory.
Note for definition Australian law
See clause 9 of Part 2 of this Dictionary for the meaning of a law of the
Commonwealth, a State, a Territory or a foreign country. That clause
also further defines Australian law.
Australian lawyer, see section 5(a) of the Legal Profession Act.
Australian legal practitioner, see section 6(a) of the Legal Profession
Act.
Australian or overseas proceeding means a proceeding (however
described) in an Australian court or a foreign court.
Australian Parliament means the Parliament of the Commonwealth or a
State or the Legislative Assembly of a Territory.
Australian practising certificate, see section 4 of the Legal Profession
221
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Act.
Australian-registered foreign lawyer, see section 4 of the Legal
Profession Act.
Australian Statistician means the Australian Statistician referred to in
section 5(2) of the Australian Bureau of Statistics Act 1975 (Cth), and
includes any person to whom the powers of the Australian Statistician
under section 12 of the Census and Statistics Act 1905 (Cth) have been
delegated.
business, see clause 1 of Part 2 of this Dictionary.
case, of a party, means the facts in issue in respect of which the party
bears the legal burden of proof.
child means a child of any age, and includes the meaning given in
clause 10(1) of Part 2 of this Dictionary.
civil penalty, see clause 3 of Part 2 of this Dictionary.
civil proceeding means a proceeding other than a criminal proceeding.
client, see section 117.
coincidence evidence means evidence of a kind referred to in section
98(1) that a party seeks to have adduced for the purpose referred to in
that subsection.
coincidence rule means the provision contained in section 98(1).
Commonwealth Act, see section 2A.
Commonwealth owned body corporate means a body corporate that,
were the Commonwealth a body corporate, would, for the purposes of
the Corporations Act 2001, be:
(a)
a wholly-owned subsidiary of the Commonwealth; or
(b)
a wholly-owned subsidiary of another body corporate that is, under
this definition, a Commonwealth owned body corporate because of
the application of paragraph (a) (including the application of that
paragraph together with another application or other applications of
this paragraph).
Commonwealth record means a record made by:
(a)
a Department within the meaning of the Public Service Act 1999
(Cth); or
(b)
the Parliament of the Commonwealth, a House of the Parliament, a
222
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
committee of a House of the Parliament or a committee of the
Parliament; or
(c)
a person or body, other than a Legislative Assembly, holding office,
or exercising power, under or because of the Constitution or a law
of the Commonwealth; or
(d)
a body or organisation other than a Legislative Assembly, whether
incorporated or unincorporated, established for a public purpose:
(e)
(i)
by or under a law of the Commonwealth or of a Territory (other
than the Australian Capital Territory, this Territory or Norfolk
Island); or
(ii)
by the Governor-General; or
(iii)
by a Minister of the Commonwealth; or
any other body or organisation that is a Commonwealth owned
body corporate;
and kept or maintained by a person, body or organisation of a kind
referred to in paragraph (a), (b), (c), (d) or (e), but does not include a
record made by a person or body holding office, or exercising power,
under or because of the Constitution or a law of the Commonwealth if the
record was not made in connection with holding the office concerned, or
exercising the power concerned.
confidential communication, see section 117.
confidential document, see section 117.
court means a Territory court.
Notes for definition court
1
Territory court is defined in this Dictionary.
2
The Commonwealth Act does not include this definition.
credibility, of a person who has made a representation that has been
admitted in evidence, means the credibility of the representation, and
includes the person's ability to observe or remember facts and events
about which the person made the representation.
credibility, of a witness, means the credibility of any part or all of the
evidence of the witness, and includes the witness's ability to observe or
remember facts and events about which the witness has given, is giving
or is to give evidence.
credibility evidence, see section 101A.
223
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
credibility rule means the provision contained in section 102.
criminal proceeding means a prosecution for an offence and includes:
(a)
a proceeding for the committal of a person for trial or sentence for
an offence; and
(b)
a proceeding relating to bail;
but does not include a prosecution for an offence that is a prescribed
taxation offence within the meaning of Part III of the Taxation
Administration Act 1953 (Cth).
cross-examination, see clause 2(2) of Part 2 of this Dictionary.
cross-examiner means a party who is cross-examining a witness.
de facto partner
Note for definition de facto partner
This definition is not needed because of the definition of de facto partner
in section 19A(3) of the Interpretation Act.
document means any record of information, and includes:
(a)
anything on which there is writing; or
(b)
anything on which there are marks, figures, symbols or perforations
having a meaning for persons qualified to interpret them; or
(c)
anything from which sounds, images or writings can be reproduced
with or without the aid of anything else; or
(d)
a map, plan, drawing or photograph.
Note for definition document
See also clause 8 of Part 2 of this Dictionary on the meaning of
document.
electronic communication, see section 5 of the Electronic Transactions
(Northern Territory) Act.
examination in chief, see clause 2(1) of Part 2 of this Dictionary.
exercise, of a function, includes performance of a duty.
fax, in relation to a document, means a copy of the document that has
been reproduced by facsimile telegraphy.
224
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
federal court
Note for definition federal court
The Commonwealth Act includes a definition of this term.
foreign court means any court (including any person or body authorised
to take or receive evidence, whether on behalf of a court or otherwise
and whether or not the person or body is empowered to require the
answering of questions or the production of documents) of a foreign
country or a part of such a country.
function includes power, authority and duty.
government or official gazette includes the Government Gazette.
Note for definition government or official gazette
The definition of this term in the Commonwealth Act and NSW Act differs
from this definition.
Governor of a State includes any person for the time being
administering the Government of the State.
Note for definition Governor of a State
The Commonwealth Act does not include a definition of Governor of a
State. The definition is covered by section 16B of the Acts Interpretation
Act 1901 (Cth).
Governor-General means Governor-General of the Commonwealth and
includes any person for the time being administering the Government of
the Commonwealth.
Note for definition Governor-General
The Commonwealth Act does not include a definition of GovernorGeneral. The definition is covered by section 16A of the Acts
Interpretation Act 1901 (Cth).
hearsay rule means the provision contained in section 59(1).
identification evidence means evidence that is:
(a)
an assertion by a person to the effect that a defendant was, or
resembles (visually, aurally or otherwise) a person who was,
present at or near a place where:
(i)
the offence for which the defendant is being prosecuted was
committed; or
(ii)
an act connected to that offence was done;
at or about the time at which the offence was committed or the act
225
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
was done, being an assertion that is based wholly or partly on what
the person making the assertion saw, heard or otherwise perceived
at that place and time; or
(b)
a report (whether oral or in writing) of such an assertion.
investigating official means:
(a)
a police officer (other than a police officer who is engaged in covert
investigations under the orders of a superior); or
(b)
a person appointed by or under an Australian law (other than a
person who is engaged in covert investigations under the orders of
a superior) whose functions include functions in respect of the
prevention or investigation of offences.
joint sitting means:
(a)
in relation to the Parliament of the Commonwealth – a joint sitting of
the members of the Senate and of the House of Representatives
convened by the Governor-General under section 57 of the
Commonwealth Constitution or convened under any Act of the
Commonwealth; or
(b)
in relation to a bicameral legislature of a State – a joint sitting of
both Houses of the legislature convened under a law of the State.
judge, in relation to a proceeding, means the judge, magistrate or other
person before whom the proceeding is being held.
law, see clause 9 of Part 2 of this Dictionary.
lawyer, see section 117.
leading question means a question asked of a witness that:
(a)
directly or indirectly suggests a particular answer to the question; or
(b)
assumes the existence of a fact the existence of which is in dispute
in the proceeding and as to the existence of which the witness has
not given evidence before the question is asked.
legal counsel means an Australian lawyer employed in or by a
government agency or other body who by law is exempted from holding
an Australian practising certificate, or who does not require an Australian
practising certificate, to engage in legal practice in the course of that
employment.
Note for definition legal counsel
Examples of legal counsel are in-house counsel and government
solicitors.
226
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Legislative Assembly means any present or former Legislative
Assembly of a Territory, and includes the Australian Capital Territory
House of Assembly.
member, of the Australian Federal Police, includes a special member or
a staff member of the Australian Federal Police.
NSW Act, see section 2A.
offence means an offence against or arising under an Australian law.
opinion rule means the provision contained in section 76.
overseas-registered foreign lawyer, see section 170 of the Legal
Profession Act.
parent includes the meaning given in clause 10(2) of Part 2 of this
Dictionary.
party, see section 117.
picture identification evidence, see section 115.
police officer means:
(a)
a member of the Australian Federal Police; or
(b)
a member of the police force of a State or Territory.
postal article, see section 3 of the Australian Postal Corporation Act
1989 (Cth).
previous representation means a representation made otherwise than
in the course of giving evidence in the proceeding in which evidence of
the representation is sought to be adduced.
prior consistent statement, of a witness, means a previous
representation that is consistent with evidence given by the witness.
prior inconsistent statement, of a witness, means a previous
representation that is inconsistent with evidence given by the witness.
probative value, of evidence, means the extent to which the evidence
could rationally affect the assessment of the probability of the existence
of a fact in issue.
prosecutor means a person who institutes or is responsible for the
conduct of a prosecution.
227
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
public document means a document that:
(a)
forms part of the records of the Crown in any of its capacities; or
(b)
forms part of the records of the government of a foreign country; or
(c)
forms part of the records of a person or body holding office or
exercising a function under or because of the Commonwealth
Constitution, an Australian law or a law of a foreign country; or
(d)
is being kept by or on behalf of the Crown, such a government or
such a person or body;
and includes the records of the proceedings of, and papers presented to:
(e)
an Australian Parliament, a House of an Australian Parliament, a
committee of such a House or a committee of an Australian
Parliament; and
(f)
a legislature of a foreign country, including a House or committee
(however described) of such a legislature.
re-examination, see clause 2(3) and (4) of Part 2 of this Dictionary.
representation includes:
(a)
an express or implied representation (whether oral or in writing); or
(b)
a representation to be inferred from conduct; or
(c)
a representation not intended by its maker to be communicated to
or seen by another person; or
(d)
a representation that for any reason is not communicated.
seal includes a stamp.
tendency evidence means evidence of a kind referred to in
section 97(1) that a party seeks to have adduced for the purpose
referred to in that subsection.
tendency rule means the provision contained in section 97(1).
Territory court means:
(a)
the Supreme Court; or
(b)
any other court created by a law of the Territory; or
(c)
any person or body (other than a court) that, in exercising a function
under the law of the Territory, is required to apply the laws of
evidence.
228
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Note for definition Territory court
The Commonwealth Act does not include this definition. The
Commonwealth Act contains a similar definition of "ACT court". The
NSW Act contains a similar definition of "NSW court". The Victorian Act
contains a similar definition of "Victorian court".
traditional laws and customs, of an Aboriginal or Torres Strait Islander
group (including a kinship group), includes any of the traditions,
customary laws, customs, observances, practices, knowledge and
beliefs of the group.
Victorian Act, see section 2A.
visual identification evidence, see section 114.
witness includes the meaning given in clause 7 of Part 2 of this
Dictionary.
Part 2
1.
Other expressions
References to businesses
(1)
(2)
A reference in this Act to a business includes a reference to the
following:
(a)
a profession, calling, occupation, trade or undertaking;
(b)
an activity engaged in or carried on by the Crown in any of its
capacities;
(c)
an activity engaged in or carried on by the government of a
foreign country;
(d)
an activity engaged in or carried on by a person or body
holding office or exercising power under or because of the
Commonwealth Constitution, an Australian law or a law of a
foreign country, being an activity engaged in or carried on in
the performance of the functions of the office or in the
exercise of the power (otherwise than in a private capacity);
(e)
the proceedings of an Australian Parliament, a House of an
Australian Parliament, a committee of such a House or a
committee of an Australian Parliament;
(f)
the proceedings of a legislature of a foreign country, including
a House or committee (however described) of such a
legislature.
A reference in this Act to a business also includes a reference to:
(a)
a business that is not engaged in or carried on for profit; and
229
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(b)
2.
3.
a business engaged in or carried on outside Australia.
References to
re-xamination
examination
in
chief, cross-examination and
(1)
A reference in this Act to examination in chief of a witness is a
reference to the questioning of a witness by the party who called
the witness to give evidence, not being questioning that is
re-examination.
(2)
A reference in this Act to cross-examination of a witness is a
reference to the questioning of a witness by a party other than the
party who called the witness to give evidence.
(3)
A reference in this Act to re-examination of a witness is a reference
to the questioning of a witness by the party who called the witness
to give evidence, being questioning (other than further examination
in chief with the leave of the court) conducted after the crossexamination of the witness by another party.
(4)
If a party has recalled a witness who has already given evidence, a
reference in this Act to re-examination of a witness does not include
a reference to the questioning of the witness by that party before
the witness is questioned by another party.
References to civil penalties
For the purposes of this Act, a person is taken to be liable to a civil
penalty if, in an Australian or overseas proceeding (other than a criminal
proceeding), the person would be liable to a penalty arising under an
Australian law or a law of a foreign country.
4.
Unavailability of persons
(1)
For the purposes of this Act, a person is taken not to be available to
give evidence about a fact if:
(a)
the person is dead; or
(b)
the person is, for any reason other than the application of
section 16 (Competence and compellability – judges and
jurors), not competent to give the evidence; or
(c)
the person is mentally or physically unable to give the
evidence and it is not reasonably practicable to overcome that
inability; or
(d)
it would be unlawful for the person to give the evidence; or
230
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
(2)
5.
(e)
a provision of this Act prohibits the evidence being given; or
(f)
all reasonable steps have been taken, by the party seeking to
prove the person is not available, to find the person or secure
his or her attendance, but without success; or
(g)
all reasonable steps have been taken, by the party seeking to
prove the person is not available, to compel the person to give
the evidence, but without success.
In all other cases the person is taken to be available to give
evidence about the fact.
Unavailability of documents and things
For the purposes of this Act, a document or thing is taken not to be
available to a party if and only if:
(a)
it cannot be found after reasonable inquiry and search by the party;
or
(b)
it was destroyed by the party, or by a person on behalf of the party,
otherwise than in bad faith, or was destroyed by another person; or
(c)
it would be impractical to produce the document or thing during the
course of the proceeding; or
(d)
production of the document or thing during the course of the
proceeding could render a person liable to conviction for an offence;
or
(e)
it is not in the possession or under the control of the party and:
(i)
it cannot be obtained by any judicial procedure of the court; or
(ii)
it is in the possession or under the control of another party to
the proceeding concerned who knows or might reasonably be
expected to know that evidence of the contents of the
document, or evidence of the thing, is likely to be relevant in
the proceeding; or
(iii)
it was in the possession or under the control of such a party at
a time when that party knew or might reasonably be expected
to have known that such evidence was likely to be relevant in
the proceeding.
Clauses 4 and 5 of Part 2, ‘the unavailability of persons’ and ‘the unavailability
of documents and things’, are of great interest when considered with the
exceptions to the hearsay rule. Clause 65 allows evidence of a previous
representation to be given where the person who made the representation is
231
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
not available to give evidence.
Being dead is being unavailable but mere lack of memory about a fact would
not mean that a person was not competent to give evidence about the fact.
Clause 4(e) demands all reasonable steps to have been taken to secure the
person’s attendance. In R v Kazzi (2003) 140 A Crim R 545; [2003] NSWCCA
241, the prosecution witness in question was believed to be residing in India.
While the police may well be required to ascertain the whereabouts of a
witness when that witness was found to be in another country, where
‘information as to [the person’s] whereabouts in India is non-existent’, and it
was not even known in what city he resides, it was understandable, in the
circumstances, that the police did no more to find him. Similarly, where an
experienced private investigator was hired to carry out enquiries in an effort to
locate a witness, it was held that ‘all reasonable steps’ had been undertaken.
Other examples where it has been concluded that all reasonable steps have
been taken to secure attendance are:
(1)
the person did not wish to give evidence and left the country after being
served with a subpoena,
(2)
the person, while residing in another country stated that the person had
no intention of giving evidence either in person or by video link, and
(3)
the person had been called and refused to testify in spite of the threat of
contempt proceedings4.
The fact that the defendant cannot cross-examine the absent witness is
relevant to the discretion in clauses 135 and 137 but not relevant to clause 65.
6.
Representations in documents
For the purposes of this Act, a representation contained in a document is
taken to have been made by a person if:
(a)
the document was written, made or otherwise produced by the
person; or
(b)
the representation was recognised by the person as his or her
representation by signing, initialling or otherwise marking the
document.
4
R v Suteski (2002) 128 A Crim R 275; [2002] NSWSC 218 at 277-278. An edited ERISP (record of
interview) was introduced in evidence.
232
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
7.
8.
Witnesses
(1)
A reference in this Act to a witness includes a reference to a party
giving evidence.
(2)
A reference in this Act to a witness who has been called by a party
to give evidence includes a reference to the party giving evidence.
(3)
A reference in this clause to a party includes a defendant in a
criminal proceeding.
References to documents
A reference in this Act to a document includes a reference to:
8A
(a)
any part of the document; and
(b)
any copy, reproduction or duplicate of the document or of any part
of the document; and
(c)
any part of such a copy, reproduction or duplicate.
References to offices etc.
In this Act:
9.
(a)
a reference to a person appointed or holding office under or
because of an Australian law or a law of the Commonwealth
includes a reference to an APS employee within the meaning of the
Public Service Act 1999 (Cth); and
(b)
in that context, a reference to an office is a reference to a position
occupied by the APS employee concerned, and a reference to an
officer includes a reference to a Secretary, or APS employee, within
the meaning of the Act.
References to laws
(1)
A reference in this Act to a law of the Commonwealth, a State, a
Territory or a foreign country is a reference to a law (whether
written or unwritten) of or in force in that place.
(2)
A reference in this Act to an Australian law is a reference to an
Australian law (whether written or unwritten) of or in force in
Australia.
233
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
10.
References to children and parents
(1)
(2)
11.
A reference in this Act to a child of a person includes a reference to:
(a)
an adopted child or ex-nuptial child of the person; and
(b)
a child living with the person as if the child were a member of
the person's family.
A reference in this Act to a parent of a person includes a reference
to:
(a)
an adoptive parent of the person; and
(b)
if the person is an ex-nuptial child – the person's natural
father; and
(c)
the person with whom a child is living as if the child were a
member of the person's family.
References to de facto partners
This clause is not needed because of the definition of de facto
partner in section 19A(3) of the Interpretation Act.
234
Part E – Annotated Copy of the Evidence (National Uniform Legislation) Act
Acknowledgement
This document has made extensive use of, and borrowed heavily from, the
eighth and ninth editions of Stephen Odgers excellent text ‘Uniform Evidence
Law’ published by Thomson Reuters. Stephen Odgers SC was involved in
the ALRC committee which wrote the original version of the Uniform Evidence
Act, and has been involved in its evolution ever since. Jill Anderson, Jill
Hunter and Neil Williams SC wrote ‘The New Evidence Law’ published by
LexisNexis Butterworths, which is also an excellent resource and has been
borrowed heavily from. The Northern Territory Law Reform Committee’s
“Report on the Uniform Evidence Act” was also of great help in writing this
discussion paper. Some of the more straightforward information in the paper
has been lifted directly from the Victorian Explanatory Statement.
The Explanatory statement can be found at:
http://notes.nt.gov.au/dcm/legislat/Acts.nsf/5504d78eee675d6e6925649e001b
b652/540f344ede7d98d669257acb000e945f?OpenDocument
235