LLW4007 Evidence: Principals And Rules Of Law Of Evidence In Australia

LLW4007 Evidence

Discuss About The Evidence Relates To The Legal Principles?

The law of evidence relates to the legal principles and the rules which govern the proof of facts under the lawful proceedings. Through the law of evidence, it is determined whether or not particular evidence has to be considered by the judiciary in giving their verdict. This law determines the quality, quantity, type of proof, and the like, which are required for a litigation to be undertaken. Depending upon the type of litigation, be it in a criminal, family or civil court, along with the jurisdiction, these rules are varied. The acceptability of particular evidence and its reliability is determined through law of evidence[1].

In Australia, the legal proceedings are varied based on the jurisdiction, particularly in the matter of evidence law[2]. In the State of Victoria, the Evidence Act, 2008[3] is applicable and even with its applicability the common law continues to play a role in the law of evidence. This is because section 9 of the Evidence Act, 2008 (Vic) provides that the act is not affected by the common law rules in the matter of evidence in any of the proceedings where this act is applicable, unless the act specifically provides otherwise[4]. So, the common law can continue to have a role, till the time this Act specifically states otherwise.

The existence of the common law and the Evidence Act is mostly harmonious, where they continue to support each other. Often, the common law is referred to get an understanding of a particular concept[5]. However, there are times, where the differentiation between the act and common law is not clear and so, a tension is born between the two laws. In the following parts, an attempt has been made to understand this very complex relationship which is present between the two.

In Australia, the law of evidence is a mixture of common law and statute, coupled with the rules of court. Back in July, 2004, the Australian Law Reform Commission, or the ALRC was asked by the Attorney General of the Government of Australia to conduct an inquiry in the Evidence Act, 1995 (Cth)[6]’s operation. The New South Wales Law Reform Commission or the NSWLRC was also asked by the Attorney General of New South Wales to review the operation of the Evidence Act, 1995 (NSW)[7]. In 2004, the Victorian Government made an announcement where it was proposed to implement the legislation which was consistent with the model Evidence Acts, which were passed by the NSW and the Commonwealth parliaments and made adaptations on the basis of Victorian courts[8]. In 2004 November, the Victorian Law Reform Commission, also known as the VLRC, was asked by the Attorney General of Victoria to review the law of evidence which was applicable in Victoria. All this was done to assist in the introduction of Uniform Evidence Act. And even though, the Commonwealth Evidence Act 1995 was passed, the state laws in this regard continue to apply with the common law[9].

Harmony between the Common Law and the Evidence Act

The Uniform Evidence Acts have been adopted in seven distinctive jurisdictions, the ones relevant to this discussion are the Evidence Act, 1995 (Cth) and the Evidence Act, 2008 (Vic). With this legislation, the majority of the common law rules have been extinguished, which have been stated in the later parts of this discussion. And the objective of the Uniform Evidential Rules is this extinguishment in all of the federal, state and territorial courts. The goal is to brig uniformity to the evidence laws across the nation, though, the still is yet to be achieved[10].

It is undisputed that the Uniform Evidence Acts and the Evidence Act 2008 (Vic) are not law of evidence’s code. In case there had been an intention to create a code, the ALRC would have been very clear about it and would have developed a code, instead of trying to bring the relevant legislatures as a single legislation. The Evidence Act 2008 (Vic) does not affect the operation of the rule of common law, till the time, the legislation, wither expressly or by necessary intendments provides so. This act also provides that the operation of evidential or lawful presumption, which is consistent with this act, is not affected[11]. The importance of the Uniform Evidence Act in the context of being a code has been raised due to the relationship between such acts and the common law.

In case these provisions are operated as codes, they would substantially influence the manner in which the common law principles can be made use of with regards to the application of these Uniform Evidence Acts[12]. A consensus has emerged, in light of this, regarding the issue not being a code, but the extent of admissibility of the issues which are governed by the statutory scheme and this was stated in the matter of EI Dupont de Nemours & Co v Imperial Chemical Industries[13]. In the case of Idoport Pty Ltd v National Australia Bank Ltd[14], it was stated that the Uniform Evidence Acts are not codes and cannot be used as a way of retaining a particular aspect under the common law where there is an inconsistency with the operation of the Act, for instance, the Victorian Evidence Act, 2008.

The preferable approach here is one where the technical attempt behind the characterization of the admissibility of the provisions of the Uniform Evidence Acts, with regard to the codification, is abandoned. A complexity is revealed through the jurisprudence regarding the codification and the legal codes, which is not easy to be compliant to such an attempt.  Though, what does prove to be helpful is the reflection upon the codified legislation’s nature. This is due to the fact that the Evidence Act 2008 (Vic) and the Uniform Evidence Acts embody certain aspects of the actually codified legislations, which have been implemented in the jurisdictions of common law[15]. Certain essential elements of a legal code were identified by the New Zealand Law Commission while codifying the evidence law of New Zealand. A true code was stated to be which is a legislative enactment and is systematic in the structure it has, is comprehensive, is pre-emptive and which clearly provides the principles which have to be applied. The element which differentiates between a legislative enactment and a code is the very purpose of the code, and not the limited statutory enactments, and this purpose relates to the establishment of the legal order, which is based on the principles[16].

One of the key objectives or purposes of the original evidence inquiry conducted by the ALRC was the reviewing of the common law and was to develop a principled approach towards the evidence law. This led to the major changes in the common law of certain areas; and in others, this remains as a key reference which assists in the application of the Uniform Evidence Acts. The approach taken in Papakosmas v The Queen[17], by the High Court of Australia, and the one taken in the case of R v Ellis[18], by the Supreme Court of New South Wales, shows the approach which is guided by the principles which have been contained under the Uniform Evidence Acts. This clarifies that by referring to the common law the underlying concept’s understanding can be facilitated and can also assist in identifying the chances brought through these Uniform Evidence Acts[19].

As has been stated earlier, section 9 of Evidence Act, 2008 (Vic) provides that the common law principles regarding evidence are not affected through the advent of this act and they would apply so far as they are not specifically restricted. However, where the Evidence Act, 2008 (Vic) does not provide expressly that a certain common law principle is applicable, the courts continue to adopt such doctrines and a leading example of this is res gestae doctrine. Res gestae doctrine is a common law doctrine which relates to testimony[20]. The Hearsay rules state that a court can refuse to admit the evidence statements as a witness when they say they have heard another person say. And an exception to this rule lies in res gestae doctrine[21]. The application of this principle, with the introduction of the Evidence Act 2008 (Vic) has been complicated. Neither the cases which deal with the transaction evidence, nor the Evidence Act deal with or make reference to this doctrine. Instead, the reliance is placed over the principles given in the case of O'Leary v The King[22].

R v Adam[23] is one of such cases where the res gestae doctrine was applied. In this case, an off duty police officer was murdered in a hotel car park and the appellant had been held guilty of inflicting grievous bodily harm in a malicious manner over the deceased. The evidence, regarding the appellant having being engaged in staring argument, before the assault, with the patron in the hotel was admitted. When an appeal was made to the Crown, it was argued that the basis of admitting the evidence was based on two reasons. One of this was based on the principle given under O'Leary v The King, and the conduct of Adam was held to be the internal part of the transaction which consisted of the intertwined events, including the phases of attack on the officer[24].

In this very case, it was held by the court that the Evidence Act had not abolished the principle given under the O'Leary v The King case. For this purpose, reference was made to section 9. And it was stated that the act never abolished this principle in an express manner and the same was also not done by a necessary intendment. Even the test of admissibility was said to have been satisfied through O'Leary v The King based on section 55 of the Evidence Act, 1995 (NSW). So, it is very clear that the Uniform Evidence Acts and the Evidence Act, 2008 (Vic) leave a lot of scope for the applicability of the principles which are covered under the common law[25].

Another point of convergence under the evidence acts and the common law can be found in the Uniform Evidence Acts’ Division 1 of Part 3.10[26], where the test given in the case of Grant v Downs[27] has been adopted, which is otherwise referred to as dominant purpose test. A key legislation which reflects the common law is section 125(1) where the paragraph (a) of this subjection is a reflection of the common law and the paragraph (b) is an extension of it, which further confirms the harmonization of the statutory and the common law pertaining to evidence[28]. Section 189, under the Evidence Act, 2008 (Vic), deals with provisions relating to void dire, i.e., hearing within a hearing[29]. And these can be used under the criminal and civil proceedings. Where the procedural matters are not dealt with under this section, the common law determines when a voir dire can take place.

Even though the common law facilitates the Evidence Act 2008 (Vic) and the Uniform Evidence Acts, by clarifying on different concepts, there are a range of divergences between the two laws. At times, the two laws merge and there is a tension born between these laws, regarding the operation and the scope of these laws. Through the introduction of the Uniform Evidence Acts and the Evidence Act 2008 (Vic), a range of major reforms were seen under the common law. A more flexible approach has been adopted through Part 2.2 and the old rule of original document has been abolished[30]. Section 38 provides that in case a witness has given an unfavorable evidence, after obtaining the leave of court, the cross examination of the own witness of the party is now permissible[31].

Through Part 3.2, there has been a substantial modification in the hearsay rule[32]. Till the time a notice has been given along with a major probative value, the tendency and coincidence evidence is not considered as admissible. Further, the probative value of such evidence, in the criminal proceedings, which has been adduced through the prosecution, has to be significantly overshadowing the prejudicial effects which can be placed over the defendants. There has also been a modification in the privilege against the self-incrimination. Contrary to the common law, the court can now exercise a general discretion towards the refusal of admission of evidence in such cases where the probative value is majorly outweighed owing to the dangers pertaining to the same being unfairly biased towards the defendants[33].

Alternatively, it could also be used to limit the use regarding the making of evidence, in case the evidence can be unfairly biased towards a particular party, or can be claimed to be confusing or misleading. The shortfalls under the common law have been eradicated through the introduction and facilitating the use of computer generated evidence, along with the introduction of procedural safeguards in the form of request system[34]. Some of the other noteworthy reforms which were brought through the commonwealth Evidence Act, which is mirrored in the Evidence Act, 2008 of Victoria, relate to the common knowledge rules and the ultimate issue being abolished and the privilege being extended to the religious confessions.

Amongst the most substantial manner in which the Evidence law changed the common law was by replacing the hear-say under the prophylactic common law rule through section 60(1)[35] of the Uniform Evidence Acts. And due to the possibility of a collision between the common law and the Evidence Act as drafted for each jurisdiction, extensive provisions have been made ender the Evidence acts to provide for the assessment of the hearsay evidence’s availability. The most substantial one in this is the case of Papakosmas v The Queen. The value of the interface of the provisions of common law and the Uniform Evidence Acts was given in a separate judgment, though the same was not dissenting, in the matter of Baker v R[36]. As the statutory law replaced the common law in hear-say matters, often there is a tug of war between which provisions would be upheld. This is due to the provisions being similar. The key term here relates to them being similar and not same, which could result in the supremacy of the Evidence Act, 2008 (Vic) owing to its section 9[37].

There are also some provisions which compete with each other under the Evidence Act and the common law. For instance, under the common law, an individual is competent to give the sworn evidence in case they can take the oath. In other words, if a person understands the consequences, as well as, the nature of the oath, they can are competent to give sworn evidence. Under the Evidence Act, 2008, the sworn evidence can only be made in the appropriate form which is contained in Schedule 1 or in a similar form. However, this requirement is restrictive in the sense that the probative value of the evidence can be restricted due to the complications relating to sworn evidence under the Evidence Acts. Similarly, the requirement given under the common law regarding the person to understand the difference between right and wrong is questionable. The test of competence which were given under the Evidence Act earlier, led to the amendment of the act, regarding the sworn and unsworn evidence[38].

Section 27 of the Evidence Act, 2008 (Vic) relates to the parties questioning the witnesses[39]. Based on the principles of the common law, the general rule is that the parties’ can question the witnesses, and the role of the judges is limited to asking questions regarding the removal of apparent ambiguities. So, such questions, which have been designed to clear the answers, can be uncertain or equivocal, or may be within reason for identifying the matters which can be a concern to him. Such constraints are particularly applicable to criminal proceedings with a jury. There has been a chance of position under the civil proceedings. In the case of FB v The Queen[40] was a case where it was seen that an active role is played by the judges in the conduct of cases. And the courts intervene in necessary cases to clarify upon the issues. Hence, to clarify in the matters of contradiction between the two laws, the judiciary comes to play a crucial role[41].

Conclusion

On the basis of the discussion which has been carried above, it can be concluded that even though the statutory law, i.e., the Evidence Act, 2008 (Vic) has been passed, the common law continues to be applicable, and its role becomes particularly evident when the statutory silent or is ambiguous on a particular matter. And even though the provisions of common law have been replaced through the Evidence Act, 2008 (Vic) and the Uniform Evidence Acts, they continue to play a crucial role. This has been evidenced particularly in the matter of res gestae doctrine. The two jurisdictional laws continue to co-exist and in the matters where there is turmoil between the two, the judiciary comes to play a very crucial role and take decision to effectively deal with such issues. They key pressure point which strains the otherwise harmonious relationship between the common law and the Evidence Act, 2008 (Vic) lies in such provisions which have been replaced by the statutory law and where the statutory law is silent. So, unless the common law can be applied peacefully, it can give rise to a struggle, as is usually noticed in the cases of hear-say evidence, where even till date, situations are born where the overriding provisions of the statutory law collide with the similar based common law. However, the chances of the common law and the co-existing in harmony are more. And with the attainment of the hoped uniform evidence legislation across the nation, such issues can effectively be dealt with.

References

Hemmin A, ‘When Is a Code a Code?’ [2010] 15(1) Deakin Law Review 65

Heydon D, Cross on Evidence (LexiNexis, 10^th ed, 2014)

Keane A, and McKeown P, The Modern Law of Evidence (Oxford University Press, 11^th ed, 2016)

Munday R, Evidence (Oxford University Press, 9^th ed, 2017)

Sklansky DA, Evidence: Cases, Commentary, and Problems (Wolters Kluwer Law & Business, 4^th ed, 2015)

Baker v R (2012) 289 ALR 614

EI Dupont de Nemours & Co v Imperial Chemical Industries (2002) 54 IPR 304, [46].

FB v The Queen [2011] NSWCCA 217

Grant v Downs (1976) 135 CLR 674

Idoport Pty Ltd v National Australia Bank Ltd (2000) 50 NSWLR 640, 65

O'Leary v The King (1946) 73 CLR 566

Papakosmas v The Queen (1999) 196 CLR 297

R v Adam (1999) 106 A Crim R 510, [1999] NSWCCA 189

R v Ellis (2003) 58 NSWLR 700

[1] Adrian Keane and ‎Paul McKeown, The Modern Law of Evidence (Oxford University Press, 11^th ed, 2016)

[2] National Archives of Australia, Evidence law in Australia (2017) <https://www.naa.gov.au/information-management/information-governance/evidence/evidence-law-australia/index.aspx>

[3] Evidence Act, 2008 (Vic)

[4] Evidence Act 2008, s9

[5] Australian Law Reform Commission, 27. Evidence in Sexual Assault Proceedings (2017) <https://www.alrc.gov.au/publications/27.%20Evidence%20in%20Sexual%20Assault%20Proceedings/evidence-issues#_ftnref5>

[6] Evidence Act, 1995 (Cth)

[7] Evidence Act, 1995 (NSW)

[8] ALRC, Review of the Uniform Evidence Acts (2017) <https://www.alrc.gov.au/sites/default/files/pdfs/publications/DP69.pdf>

[9] Australian Law Reform Commission, 1. Introduction to the Inquiry (2017) <https://www.alrc.gov.au/publications/1-introduction-inquiry/harmonisation-australian-evidence-law-0>

[10] Ibid

[11] Evidence Act 2008, s9

[12] Dyson Heydon, Cross on Evidence (LexiNexis, 10^th ed, 2014)

[13] (2002) 54 IPR 304, [46]

[14] (2000) 50 NSWLR 640, 65

[15] Australian Law Reform Commission, 2. The Uniform Evidence Acts (2017) <https://www.alrc.gov.au/publications/2.%20The%20Uniform%20Evidence%20Acts/movement-towards-uniform-evidence-law#_ftnref20>

[16] Andrew Hemmin, ‘When Is a Code a Code?’ [2010] 15(1) Deakin Law Review 65

[17] (1999) 196 CLR 297

[18] (2003) 58 NSWLR 700

[19] At 15

[20] Roderick Munday, Evidence (Oxford University Press, 9^th ed, 2017)

[21] David A. Sklansky, Evidence: Cases, Commentary, and Problems (Wolters Kluwer Law & Business, 4^th ed, 2015)

[22] (1946) 73 CLR 566

[23] (1999) 106 A Crim R 510, [1999] NSWCCA 189

[24] Chrissa Loukas, Evidence - Transactional - Res Gestae (2017) <https://www.publicdefenders.nsw.gov.au/Pages/public_defenders_research/Papers%20by%20Public%20Defenders/public_defenders_evidence_transactional_res_gestae.aspx>

[25] Student VIP, Topic 1: Introduction (2017) <https://studentvip-notes.s3.amazonaws.com/10880-sample.pdf>

[26] Evidence Act 2008 (Vic), div 1 pt 3.10

[27] (1976) 135 CLR 674

[28] Evidence Act 2008 (Vic), s125(1)

[29] Evidence Act 2008 (Vic), s189

[30] Evidence Act 2008 (Vic), pt 2.2

[31] Evidence Act 2008 (Vic), s 38

[32] Evidence Act 2008 (Vic), pt 3.2

[33] Alex Kuklik, Law of Evidence (2015) <https://sydney.edu.au/lec/subjects/evidence/Winter%202015/Materials%20provided%20by%20Mr%20Alexander%20Kuklik/USYD%20-%20LPAB%20-%20Evidence%20-%20Part%201%20(Revised).pdf>

[34] Ibid

[35] Evidence Act 2008 (Vic), s60(1)

[36] (2012) 289 ALR 614

[37] Evidence Act 2008 (Vic), s9

[38] At 33

[39] Evidence Act 2008 (Vic), s27

[40] [2011] NSWCCA 217

[41] At 33