Part IV: COMMENTARY ON PROPOSALS 26. Introduction
The Draft Bill
509. The Purpose of the Draft Bill. Draft legislation has been prepared to test the feasibility of a uniform, comprehensive and reformed evidence law for Federal and Territory courts. i It comprises a Bill (draft Evidence Bill 1984)ii and a small set of regulations to be made under the Bill (draft Evidence (Notice of Hearsay) Regulations). The legislation is not put forward as the settled views of the Commission. This report is an interim report, and the legislation provides a focus for discussion of the areas in which necessary reforms can be made and the suitability of the reforms proposed. After publication of this report, the Commission will be engaging in extensive consultations with the profession and the public. After they are completed, the Commission will in the light of comments and submissions that have been made, make a final report to the Attorney-General. 510. Scheme of Proposals. Comprehensive draft legislation has been prepared. It deals with the topics thought to be properly within or incidental to the laws of evidence. It is divided into four main parts together with preliminary and concluding parts: Witnesses. In this part of the draft Bill,iii the rules relating to competence and compellability, sworn and unsworn evidence, and the questioning of witnesses are set out. The third topic, the questioning of witnesses, does not purport to be an exhaustive statement of the law. The remaining parts are. Rules of Admissibility. In this part of the legislation,iv the rules that control the admissibility of items of evidence are set out. It is intended to be an exhaustive statement of the law. It follows what is, on the better view, the existing structure of the law. The rules will apply at each stage of a witness’ evidence—including cross-examination.v The legislation commences with the basic rule on which the operation of this part of the Bill rests—all relevant evidence is admissible except as otherwise provided in the Bill. All irrelevant evidence is not admissible. There then follow provisions dealing with different types of evidence. In each case, there is a primary rule which operates to exclude evidence of that type and in each case exceptions to that exclusionary rule are set out. The categories of evidence dealt with are documents, hearsay evidence, opinion evidence, admissions, judgments and convictions, character and conduct, identification evidence, privileged communications, evidence included in the public interest the disclosure of which may endanger State interests, evidence of statements made in settlement negotiations, and evidence of reasons for decision of judge or jury. Finally the legislation which contains several discretions to exclude evidence. These to a large extent reflect existing law and comprise: (a) Relevance Discretion. A discretion is included which reflects the implicit discretion contained in the existing rule of relevance. It requires a balancing of the probative value of the evidence and the disadvantages that may flow from its admission (consumption of time, prejudice, confusion and misleading effect). Illegally Obtained Evidence. A discretion is proposed to deal with evidence obtained illegally or improperly.vi Prejudice/Probative Value Discretion. The legislation includes the present discretion to exclude evidence led against an accused person where the prejudicial effect outweighs the probative value.
(b) (c)
As at present, the rules of admissibility are expressed in terms that relate to evidence and not the questions put to adduce the evidence. Objections relying on the rules of admissibility will be determined, as at present, in the light of the evidence that would be elicited by the question. It is assumed that in the absence of any provisions to the contrary the present approach to the application of
the rules of admissibility will continue—ie, it will be for the parties to invoke the rules by objecting to the admission of evidence.vii As under existing law, the admissibility of a piece of evidence should be determined by first asking whether it is relevant. If the answer to that question is in the negative it should be excluded. If the answer is in the affirmative, the party against whom it is led would then have to direct the court’s attention to one of the exclusionary rules set out in the legislation. The evidence, for example, may involve opinion and hearsay. It will be excluded unless it comes within one of the exceptions in each of the divisions dealing with such evidence. In cases where the relevance of evidence is tenuous, the courts will be able to exercise the discretion described above as the ‘relevance’ discretion. This is done at present in those instances where courts require sufficient relevance before admitting evidence. A point to note about the order of the proposals is that the rules dealing with the admissibility of evidence of the contents of documents are placed ahead of the other rules. The reason for this is that under existing law those rules are not strictly rules of admissibility but describe a mode of proof. In practice, however, they appear to be applied as if they are rules of admissibility. The rules will, however, operate before any of the other exclusionary rules and therefore have been included first. As under existing law, the legislation does not make a ruling as to the admissibility of evidence final. The unsuccessful party may in the light of further evidence renew the objection or the application to have evidence admitted. Aspects of Proof. In this part of the legislation,viii a number of topics are dealt with—judicial notice (rules which define that which does not have to be formally proved), and rules relating to the authentication and identification of evidence including presumptions to facilitate proof, standard of proof and corroboration. Miscellaneous and Safeguard Provisions. In this partix are included provisions which will apply to all or some of the preceding provisions. They include provisions ― ― ― ― enabling inferences to be drawn from the evidence tendered as to any matter which must be established for the purpose of applying the provisions of the Act; enabling the proof of formal matters by affidavit; enabling the waiver of rules of admissibility by the parties and conferring a power upon the judge in civil proceedings, to dispense with those rules; and procedures for determining the admissibility of evidence.
There are safeguards to protect parties against whom evidence may be led under the more relaxed provisions provided for hearsay evidence, secondary evidence of documents and authentication and identification. Provisions are also included which extend the existing powers on discovery and inspection to cope with modern technology and to provide safeguards under the previously mentioned provisions. Finally this part deals with the inspection and use of evidence outside the court. 511. Approach to Formulation of Proposals. The approach taken has been to identify the law at present operating in federal and Territory Courts and (in the light of the policy objectives previously stated) to identify deficiencies in that law. In some cases the deficiencies are such that it is necessary to formulate a new approach.x The view has been taken, however, that it should not be assumed, as the starting point, that the existing law of evidence is wrong. To do otherwise begs the question raised in the terms of reference of whether the law should be reformed. A case must be made out for change before reform is considered. In preparing the proposals the Commission has been guided by the principles described above.xi The proposals represent a significant rationalisation of the existing law and provide a systematic treatment of the subject. They reduce the uncertainties and address the criticisms identified elsewhere. At the same time, anyone familiar with the laws of evidence will find much that is familiar. The order of the parts of the legislation has been organised so that they reflect the order in which issues are likely to arise in the trial—the competence and swearing of a witness and how he may be questioned; the admissibility of the evidence given by the witness; and the consideration of that evidence.
Application of the Draft Bill
512. Relationship of State and Territory laws. A federal court sitting in a State or Territory applies the laws of evidence and procedure that apply to State or Territory courts sitting in those parts of Australia. xii In addition, many federal laws make provision of an evidentiary kind: the chief of these are the Evidence Act 1905 and the State and Territorial Laws and Records Recognition Act 1901.xiii The Commission has not, as yet, exhaustively examined specific federal legislation. It is necessary, in any event, to reach decisions on what should be the laws of general application before critically examining specific legislation. Accordingly, existing federal laws dealing with evidence are preserved: particular amendments will be made where this is called for. The draft Bill will have effect subject to inconsistent federal laws. On the other hand, State and Territorial laws that, by virtue of the Judiciary Act 1903, are binding on federal courts should not override the draft Bill. The need for certainty and uniformity dictate that the draft Bill should prevail over inconsistent State and Territory lawsxiv in proceedings in the relevant courts. 513. Courts. The Commission’s Reference is restricted to federal courts and courts of the Territories. These have been set out earlier in this report.xv In brief, the federal courts are the High Court of Australia, the Federal Court of Australia and the Family Court of Australia. The draft Bill extends to these courts in whatever part of Australia they are sitting. As to the courts of the Territories, two of these require special mention. The Northern Territory (although, constitutionally speaking, it remains a Territory subject to the power of the Commonwealth Parliament under the Constitution s 122) has been granted self-government.xvi Since 1978, executive authority in most matters (including the administration of justice) has been exercised by Territory Ministers. In view of this, it would be inappropriate for the draft Bill to apply to Northern Territory courts. The situation in respect of Norfolk Island is in many respects similar. A more limited form of self-government has been accorded that Territory.xvii The Commonwealth has undertaken not to extend its laws to Norfolk Island without prior consultation with the Island administration. The draft Bill has therefore been drawn on the basis that it does extend to bind Norfolk Island courts, and the Commission will consult with the Island administration on this matter. 514. Proceedings. The draft Bill applies in all proceedings in federal courts and in courts of those Territories. xviii It therefore applies whenever evidence is to be adduced, including in bail applications, interlocutory proceedings and those heard, not in open court but in chambers.xix It applies, not only in the ordinary trial situation (whether civil or criminal) but also in matters such as bankruptcy proceedings. xx There are transitional clauses included to deal with hearings commenced but not concluded before the commencement of the draft Bill.xxi
Terminology
515. Giving, etc, Evidence. Before considering the detail of the proposals, it is appropriate to make clear the sense in which certain words are commonly used in the draft Bill, and to explain some of the commonly used terms. Not all the definitions appearing in cl 3 of the draft Bill are explained here. Some are explained later, in the detailed consideration of the proposals to which they relate. The Bill is drafted on the basis that a witness in the witness box is ‘giving’ evidence. The party who is questioning him (whether in examination in chief or in cross-examination) is ‘adducing’ the evidence that the witness is giving. xxii It is the court’s function to admit or refuse to admit the evidence so adduced.xxiii 516. Meaning of ‘Proceeding’. The draft Bill classifies proceedings in three ways: Legal or Administrative Proceedings. This includes all proceedings in all courts, of whatever kind. It includes proceedings in State, Territory and foreign courts and proceedings such as courts-martial and coronial inquiries;xxiv Proceedings to which the Draft Bill Applies. This class of proceedings comprises all proceedings in courts to which the draft Bill applies;xxv
Civil and Criminal Proceedings. A criminal proceeding is defined as a prosecution in a court lie, a federal or Territory court) for an offence. All other proceedings in such courts are classed as civil proceedings.xxvi
517. Meaning of ‘Business’. The concept of a ‘business’ is central to two important reforms and rationalisations of the present law made by the draft Bill: the facilitation of proof of the contents of documents xxvii and the provision of a hearsay exception for business records. xxviii In some respects, the definition of ‘business’ included in the draft Bill reflects definitions commonly found in ‘business records’ legislation in all jurisdictions. xxix It applies to the activities of government, the activities of statutory corporations and the proceedings of parliaments and their foreign equivalents, wherever carried on. xxx The policy considerations that are relevant to the proposals made in the draft Bill about the records of all these bodies are identical and there is little point in distinguishing between them for the purposes of the draft Bill. 518. Meaning of ‘Document’ and ‘Public Document’. Also central to these reforms is the concept of a ‘document’. It is defined in the following way:
‘document’ means— (a) (b) (c) any thing on which there is writing;xxxi a map, plan, drawing or photograph; and a thing from which sounds or visual images are capable, with or without the aid of a device, of being reproduced,
and also includes a part of a document as so defined and a copy, reproduction or duplicate of a document or a part of a document.xxxii
The definition includes all the methods available for storing information: ordinary writing, computer disks, computer tapes, microfilm, photocopies and the like. Documents that are part of the records of public bodies such as governmental and statutory authorities, and the records of parliamentary proceedings (Hansards) are included in a separate category of ‘public documents xxxiii because of the special provisions made about authentication and identification of these documentsxxxiv and about evidence of their contents. 519. The Trial Process. Several definitions relating to the trial process need to be considered. First, references in the draft Bill to a judge in a proceeding include the person before whom the proceeding is being held.xxxv This may be a federal judge or, especially in the Territories, a magistrate. Secondly, where a party is giving evidence, for example, the accused in a criminal trial, provisions that apply or refer to witnesses apply or refer to him. xxxvi Thirdly, the concept of the ‘probative value’ of evidence is defined in terms that correspond to the requirements in the draft Bill as to the relevance of evidence.xxxvii Finally, it should be noted that those provisions of the draft Bill that relate to a person who is being prosecuted for a related offence, chiefly the restrictions on his competence and compellability, apply to co-accuseds, by virtue of the definition of ‘person who is being prosecuted for a related offence’ in cl 3(1).
The Commentary
520. Structure. The commentary that follows is divided into chapters which follow the order of the legislation. In each instance, the policy reasons which have been advanced in support of particular rules are identified. These are discussed in the light of the policy objectives discussed earlier in this report. The commentary then sets out the essence of the proposals, explaining them and identifying and discussing the options that are relevant. ENDNOTES
i ii iii iv See Appendix A. Hereafter the draft Bill. Part II (cl 13-42). Part III (cl 43-116).
v As at present, the rules of admissibility in terms relate to evidence and not the questions put to adduce the evidence. Objections relying on the rules of admissibility will be determined, as at present, in the light of the evidence that would be elicited by the question. vi It is developed from the present law, the Commission’s proposals in Australian Reform Commission Report No 2, Criminal Investigation, AGPS, Canberra 1975, and Australian Law Reform Report Commission, No 22, Privacy, AGPS, Canberra, 1983. vii In addition the trial judge, especially in criminal trials, will remain able to raise issues of admissibility. An option would be to include the following clause: ‘Unless the contrary intention appears, in a civil proceeding, Divisions 2, 3, 4, 5, 6, 7 and 8 of Part III do not apply in relation to evidence unless a party so requires’. viii Part IV (cl 117-134). ix Part V (cl 135-145). x eg hearsay. xi para 82f. xii Judiciary Act 1903 s 79-80. xiii Other examples include Trade Practices Act 1974 (Cth) s 74; Family Law Act 1975 (Cth) s 62(5); Patents Act 1952 s 101; High Court Rules O 39 r 3, 14, 17; Federal Court Rules O 33 r 2, O 14 r 8; Family Law Regulations reg 63(12); Marriage Act 1961 (Cth) s 94(7); Crimes Act 1914 (Cth) s 24(d)(ii). xiv cl 12. xv para 2. xvi Northern Territory (Self-Government) Act 1978. xvii Norfolk Island Act 1980. xviii cl 9. xix ibid. xx It does not apply in proceedings that are not held before a ‘court’, eg a court-martial. xxi cl 9(2). xxii Parties also adduce evidence otherwise than from witnesses: eg documents. xxiii Thus, for example, cl 59 provides: (3) In relation to— (a) evidence of a previous representation adduced by a defendant; and (b) ..., being evidence that is given by a witness who observed or heard the making of the representation, [the rule declaring that evidence of previous representations is inadmissible] does not apply. xxiv cl 3, definition of ‘legal or administrative proceeding’. This definition is needed for a limited number of situations—eg the admissibility of evidence of judgments (cl 77-9); the admissibility of evidence of judge or juror of the reasons for that decision (cl 109); the compellability of judges (cl 16). xxv See above, para 2 and 513. xxvi cl 3 definitions of ‘civil proceeding’ and ‘criminal proceeding’: the question whether proceedings for contempt of such a court should be classed as criminal or civil is not specifically addressed: it will be dealt with by the Commission in its reference on contempt of court. xxvii Pt III Div 2; Pt IV Div 2. xxviii See, in particular, Pt III Div 3 Subd C. xxix See Appendix C, para 65, 94 for an account of this legislation. xxx See cl 4 (definition of ‘business’). xxxi This is defined by the Acts Interpretation Act 1901 s 25. xxxii This definition is very similar to that recently included in the Acts Interpretation Act 1901, s 25 but that definition does not extend to photographs in certain circumstances. xxxiii cl 3 definition of ‘public document’. xxxiv See cl 53 & 124: as with the definition of ‘business’, these extend to foreign public documents. xxxv cl 3 (definition of ‘Judge’). xxxvi cl 3. Where appropriate, the general provisions are qualified by specific provisions dealing with the accused as a witness. xxxvii cl 3 (definition of ‘probative value’).