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LAW OF EVIDENCE

LEC – 2016 Winter

Week 1

Professor Elisabeth Peden

Miiko Kumar

Alex Kuklik

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• What is this course about?

• The Law of Evidence

– How to adduce evidence

– Admissibility of evidence

– Proof

• What existing knowledge does it build on?

– Knowledge of application of legislation

– Knowledge of interpreting legislation, including

through case law

– Knowledge of substantive areas of law

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Today

• House keeping

– Objectives

– Lectures

– Assessment and homework

– Materials

• Introduction

– Background to the UEL

– Relationship between UEL and CL

– Dispensing with rules of evidence

– Voir dire

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House-keeping

• Objectives?

• See course outline p1

• Lectures

• See course outline pp 4 – 7, 14 - 24

• Assessment

• See course outline pp3, 8

– The Examination will be ‘closed book’, but an unannotated copy of

the Evidence Act 1995 is permitted.

• Text and materials

• See course outline p9 -13

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Introduction

• What is evidence law?

• The rules applied in courts relating to the receipt

of material to prove facts

– What material a court may consider in determining factual

issues

– How that material can be presented in the court

– How the court decides the factual issues on the basis of

the evidence

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Introduction

• Where is evidence law from?

• Traditionally common law. Some rules have

existed from Middle Ages, but generally

developed by common law judges in 17c and 18c

– Complex rules relating to competency

– Hearsay

– Opinion

– Character evidence

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Introduction

• Where is evidence law found now?

• UEL jurisdictions:

– NSW: 1995 (This course will focus on the NSW Act)

– Commonwealth: 1995

– Tasmania: 2002

– Norfolk Island: 2004

– Victoria: 2008 (NSW + Cth amended at same time)

– ACT: 2012

– Northern Territory: 2013

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Introduction

• Where is evidence law found now?

• Queensland:

– Evidence Act 1977. Covers:

• Witnesses and examination of witnesses

• Means of obtaining evidence

• Use of AV links

• Proof of documents

• Admissibility (limited)

• Reproduction of documents

– Common law

– QLRC conducted ‘review’ of the UEL

• Tabled 2005

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Introduction

• Where is evidence law found now?

• Western Australia:

– Mainly common law.

– Evidence Act 1906.

– WALA committee conducted review of the UEL

• Tabled 1996

• Recommended adoption of UEL with retention of some WA

provisions

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Introduction

• Where is evidence law found now?

• South Australia:

– Mainly common law

– Evidence Act 1929. Covers:

• Witnesses and examination of witnesses

• Proof of documents

• Admissibility (limited)

• Reproduction of documents

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Introduction

• Where is evidence law found now?

– Under s 79 of the Judiciary Act 1903 (Cth), the laws of each state or territory—

including the laws relating to procedure, evidence, and the competency of witnesses—

are binding on all courts exercising federal jurisdiction in that state or territory. The

effect of this is that the courts of the states and territories, when exercising federal

jurisdiction, apply the law of the state or territory rather than the Evidence Act 1995

(Cth), except for those provisions that have a wider reach.

– The passage of the Evidence Act 1995 (Cth) therefore has had the effect of achieving

uniformity among federal courts wherever they are sitting, but there is no uniformity

among the states or territories when exercising federal jurisdiction.

– E.g.: a Brisbane barrister defending a client charged with a federal crime before the

Queensland Supreme Court would use that state’s evidence law; but would use the

Evidence Act 1995 (Cth) if appearing before the Federal Court, the Federal

Magistrates Court or the Family Court on a different matter the following day.

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Background to the UEL

• Australian Law Reform Commission (ALRC), Evidence Interim

Report (No. 26) (1985)

– http://www.austlii.edu.au/cgi-

bin/sinodisp/au/other/lawreform/ALRC/1985/26.html?stem=0&sy

nonyms=0&query=alrc%20evidence

• ALRC Evidence Final Report (No. 38) (1987)

– http://www.austlii.edu.au/au/other/lawreform/ALRC/1987/38.html

• Uniform Evidence Law (ALRC Report No. 102, NSWLRC

Report No.112, VLRC Final Report, 2005)

– http://www.austlii.edu.au/au/other/lawreform/ALRC/2005/102.ht

ml#03

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Background to the UEL

• Recent major amendments:

– From ALRC 102

– Model Uniform Evidence Bill was approved by the Standing

Committee of Attorneys-General in July 2007

– Evidence Amendment Act 2007 (NSW)

– Evidence Amendment Act 2008 (Cth)

– Commenced on 1 Jan 2009

– Subsequent amendments have been made on a smaller scale.

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Relationship between the Evidence Acts, the

common law and other statues

• The act is not a code:

• Does not affect the operation of other acts – s 8

– Cth provision is more complex

• Does not affect operation of common law or equity unless

done expressly or by necessary intendment – s 9

– But held to cover the field and therefore be a code in relation to:

• Chapter 3 – Admissibility: Telstra Corp v Australis Media Holdings

(No 2) (1997) 41 NSWLR 346

• Competence and compellability: R v Grasby (2000) 115 A Crim R

465

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Dispensing with the rules of evidence

• Rules can be dispensed with by consent – s 190(1):

– Part 2.1, Divisions 3, 4, 5

– Part 2.2, 2.3

– Part 3.2 – 3.8

• But consent in criminal proceedings is limited.

• Court can dispense with these provisions in civil proceedings –

s 190(2):

– If matter not genuinely in dispute.

– Application would involve unnecessary expense or delay.

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Taking Objections

CRIMINAL APPEAL RULES (NSW)

Exclusion of certain matters as grounds for appeal etc4 Exclusion

of certain matters as grounds for appeal etc

No direction, omission to direct, or decision as to the admission or

rejection of evidence, given by the Judge presiding at the trial, shall,

without the leave of the Court, be allowed as a ground for appeal or an

application for leave to appeal unless objection was taken at the trial to

the direction, omission, or decision by the party appealing or applying

for leave to appeal.

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The trial process

• People in the trial

• Role of the judge

– When sitting alone

– When sitting with jury

• Differences between civil hearings and criminal

trials - Dictionary

• Structure of a trial

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The trial process

• Pre-trial processes;

– To what hearings does the Evidence Act apply? – s 4

– To what extent does the Evidence Act apply to pre-trial

processes? – s 131A (we will look at this in detail in relation to

privilege)

• Court procedure – examination in chief/cross-examination;

• Role of judge versus jury;

• Appeal process.

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The trial process

Structure of the Evidence Act:

• Chapter 1: Jurisdictional and other matters;

• Chapter 2: Form of evidence;

• Chapter 3: Admissibility of evidence;

• Chapter 4: Standards of proof;

• Chapter 5: Miscellaneous.

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The trial process

• Chapter 2 deals with the method of

‘adducing’ evidence

• ‘How do you get it in?’ rather than ‘can the

court take it into account?’ (which is dealt

with in admissibility, Chapter 3)

– Witnesses: 2.1 (ss12 – 46)

– Documents: 2.2 (ss 47 – 51)

– Other evidence: 2.3 (ss 52 – 54)

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Voir dire

• Section 189 – ‘hearing within a hearing’ to establish

preliminary questions.

– In criminal proceedings jury not to be present if relates to an

admission or potentially improperly obtained evidence – s 189(2)

– In other cases the jury is not to be present unless the court

orders – s 189(4). Factors listed in 189(5).

– Can be used in civil and criminal proceedings.

– In other circumstances common law determines when a voir dire

can occur and the procedural matters not dealt with by s 189.