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 The 1995 uniform evidence legislation: CTH, NSW, & ACT. |
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Author: Robert Wilson
of
5th Floor Wentworth Chambers
This is an extract from Lawbook Company's Nutshell: Evidence by Robert Wilson (Sydney: LBC, 1999, 1st ed). LBC Nutshells are the essential revision tool: they provide a concise outline of the principles for each of the major subject areas within undergraduate law. Written in clear, straightforward language, the authors clearly explain the principles, and highlight key cases and legislative provisions for each subject.
Parts of this legislation have been dealt with in preceding Chapters where it has been appropriate to do so. In this final Chapter consideration is given to the problems arising from the preservation of the common law and to those Parts of the legislation that still require, at least, a brief survey.
The legislation & the common law
Independently of any specific provisions that retain the common law (such as s.9(2),10 & 11), the Uniform legislation continues the operation of evidentiary principles, both at common law and in equity, except in so far as the Act provides otherwise, either expressly or by necessary intendment (s.9(1)). Existing statutory provisions are preserved by s.8 so that the Uniform legislation and such statutes co-exist. Whilst conflicts may arise between applicable statutory provisions, the important conceptual issue that requires consideration is the extent to which common law and equitable evidentiary principles continue to operate.
It would be natural to think that, to the extent that the application of a substantive provision of the Uniform legislation renders a particular piece of evidence admissible or inadmissible, the common law would not have any role to play as it will be excluded by necessary intendment. For example, a document containing a relevant hearsay statement, which would be inadmissible at common law, tendered by an accused pursuant to s.65(8) is not subject to the exclusionary rule in s.59(1) and therefore is admissible as far as the legislation is concerned. However, this simplistic approach is a little deceptive by reason of the structure of the Act. The only effect of s.65(8) is to remove the application of the statutory hearsay rule (s.59(1). Once this is done, the document becomes admissible pursuant to s.56(1) as it is relevant evidence which is not subject to any statutory exclusion. Section 56 though operates "except as otherwise provided by this Act". Section 9(1) is such a provision which applies the common law when determining any question of admissibility, unless it be excluded expressly or by necessary intendment. Thus the approach suggested by the structure of the provisions appears to be that the admissibility of all evidence must, theoretically, be determined both under the legislation and at common law as a simultaneous exercise.
If there is a conflict between admissibility under the common law and pursuant to the statute the next step is to determine whether the Act "provides otherwise" in relation to "the operation of the principle of common law" (s.9(1) proviso). On one view this may involve asking whether the Act shows an intention to exclude the application of the common law in relation to the particular point. However, the wording of s.9(1) indicates that the better view is that whenever the common law and the Act (leaving aside the application of s.9(1)) produce different results as to admissibility, the Act will prevail. The effect of this latter view is that the common law only has application where the Act is silent as to the admissibility of a particular piece of evidence.
The same issues arise in relation to witnesses (Part 2) and to the other parts of the Act which, similarly to the exceptions to the hearsay rule, depend upon s.56 to render the evidence admissible once the exclusionary rule has been abrogated. The problem of course arises because s.56 and s.9(1) are inter-dependent by reason of the way in which they are worded.
The solution suggested above, namely that the Act must prevail, is cogent provided that one is comparing the admissibility of a hearsay statement under the common law hearsay rules with its admissibility pursuant to the statutory hearsay rule. Different consequences clearly suggest an ouster of the common law rules by reason of necessary intendment. However, the position becomes rather complex when multiple grounds of admissibility are involved.
Pending judicial determination of these issues the reader should be alert to the questions involved as a basis for constructive legal argument.
Further aspects of the legislation
These several aspects, whilst only noted briefly here, nevertheless require familiarity as they are important in practice.
Identification evidence
Part 3.9 deals with the difficult issue of identifying an accused in criminal proceedings. The sections require an identification parade where it is reasonable to hold one and also control the admission of picture identification evidence. Section 116 requires an appropriate warning to be given to the jury on the use of such evidence.
Facilitation of proof
Part 4.3 assists in proving facts through evidence produced by machines, when attestation is in issue and in relation to various types of public acts and records.
Warnings
Part 4.5 provides for warnings to be given in relation to a wide range of evidence which has suspect reliability. It applies to hearsay evidence as well as to evidence of oral confessions and testimony by accomplices.
Ancillary provisions
Part 4.6 controls a number of important aspects of the trial process such as requiring the production of documents and witnesses, proof of convictions and proof of certain matters relating to the operation of the Act by way of affidavit or expert certificate. Notice requirements are imposed.
Miscellaneous
Part 5 contains provisions on numerous important matters, such as inferences, admissions by an accused, the voire dire, waiver of the rules of evidence, granting leave upon terms, powers of discovery and inspection, dealing with witnesses who fail to attend and prohibition on publishing certain questions that have been asked of a witness. Note that these provisions are well worth close study.
Robert Wilson
BA LLM
Barrister
Wentworth Chambers
1999
March, 2001
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