I. BACKGROUND

1.1 The Commission received a reference “to review the law of evidence in both civil and criminal cases” in 1966. In 1973 a report on Evidence (Business Records)¹ was published and, in 1976, the recommendations in that report were implemented in Part IIC, “Admissibility of Business Records”, of the Evidence Act 1898. In 1978 the Commission published a report on The Rule Against Hearsay² and, in 1979 ,a working paper on Illegally and Improperly Obtained Evidence.³ Three discussion papers were published in 1980:

• Competence and Compellability;⁴
• Oaths and Affirmations;⁵ and
• Unsworn Statements of Accused Persons.⁶

1.2 In July 1979 the Australian Law Reform Commission (ALRC) received a reference on evidence in the following terms.

TO REVIEW the laws of evidence applicable in proceedings in Federal Courts and the Courts of the Territories with a view to producing a wholly comprehensive law of evidence based on concepts appropriate to current conditions and anticipated requirements AND TO REPORT:

(a) whether there should be uniformity, and if so to what extent, in the laws of evidence used in those Courts; and

(b) the appropriate legislative means of reforming the laws of evidence and of allowing for future change in individual jurisdictions should this be necessary.

This Commission determined to suspend our work on evidence pending the outcome of the ALRC’s inquiry and the publication of its report. In the course of that inquiry, and particularly in the period between the publication of the Interim and Final Reports, members of this Commission consulted with the ALRC as part of our own ongoing responsibility in the field. In May 1986 the Commission, in conjunction with the ALRC and the New South Wales Bar Association, presented three seminars in Sydney on the ALRC’s interim proposals. In 1985 Commission produced a Report Unsworn Statements of Accused Persons⁷ under our Criminal Procedure reference. In the research and consultative stages, we co-operated fruitfully with both the ALRC and the Victorian Law Reform Commission.

1.3 The ALRC produced an Interim Report in two volumes in 1985.⁸ The then Chairman of this Commission, Mr Keith Mason QC, now a member of this Division, addressed one of the above mentioned seminars on the subject of the proposals, as did Mr Greg James QC, a Commissioner. A member of this Division, Mr Paul Byrne, made two submissions to the ALRC on the interim proposals and another member, Mr Justice Andrew Rogers, earlier made oral submissions in response to discussion and issues papers. Other former members of the Commission to make submissions to the ALRC’s inquiry include Professor R Sackville, then Chairman, the Hon Justice P E Nygh of the Family Court of Australia and the late Mr T J Martin QC. Both Mr Justice Nygh and Mr Martin, formerly a judge of the New South Wales District Court and member of the Evidence Division, were consultants to the ALRC on its evidence reference.

1.4 The ALRC’s consultation within New South Wales was extensive. In addition to the three seminars mention above, a public hearing was held in Sydney in November 1985. In addition, a number of New South Wales citizens and organisations made written submissions to the ALRC following the release of the Interim Report.

1.5 Although confident of the quality of t h e ALRC’s consultations in New South Wales, we determined nevertheless to invite further Submissions on our own reference after the ALRC’s final Report was published. We wrote to the Honourable Sir Laurence Whistler Street, KCMG, Chief Justice of New South Wales, His Honour Judge J H Staunton, CBE, QC, Chief Judge of the District Court of New South Wales and Mr C R Briese, Chief Magistrate of New South Wales, inviting judges and magistrates to make submissions. We prefaced this invitation with the advice that we had determined uniformity to be critical, and that our primary recommendation would be that the legislation proposed by the ALRC should be implemented in this State. We sought advice on proposals unacceptable or unworkable in New South Wales and on matters which should be included but which were excluded by the ALRC. A general request for submissions in similar terms appeared in the November 1987 issues of the Law Society Journal and the Bar News. The publication of this request was drawn to the particular attention of the Deans of the four New South Wales University Law Faculties, the Senior Crown Prosecutor, the Senior Public Defender, the Director of Public Prosecutions and the Director of the Legal Aid Commission.

1.6 Since the completion of its Final Report in 1987,⁹ the ALRC has generously provided this Commission with full access to its records and materials within the evidence reference.

II. GENERAL RECOMMENDATION

1.7 For the reasons set out below (paras 1.8-1.18) we recommend that the bulk of the ALRC’s proposals be adopted in New South Wales. The appended draft legislation should be enacted. The draft diverges from the ALRC’s draft bill in a number of minor respects which are described in Chapter 2. In addition, this report comments on some matters not raised in the ALRC’s draft bill. These matters are discussed in Chapters 4 and 6.

III. IMPLEMENTATION AND MONITORING

1.8 The ALRC Report represents a fundamental reshaping of the law and practice of evidence. The task undertaken by the ALRC was enormous and the full ramifications of implementation of its recommendations are as yet unknown. The ALRC recommends¹⁰ that the operation of any Act passed to implement its proposals be monitored. We agree with the ALRC in this recommendation and recommend that when it comes into operation in this State, a formal. system should be established to ensure that the new law is monitored closely on a regular basis.

IV. FORMAT OF REPORT

1.9 In light of the lengthy and detailed consideration given by the ALRC to its final recommendations, we are of the view that i t is both unnecessary and unwise to repeat the investigation and consultation undertaken and to restate the detailed reasons for adopting particular proposals. The ALRC’S Interim Report details current New South Wales law (as well as current law in other States and Territories) at Appendix C. The Final Report clearly describes the proposals in the text as well as attaching draft legislation. The ALRC’s detailed reasoning is found primarily in its Interim Report.

V. FUNDAMENTAL ISSUE: WHY REFORM?

1.10 The laws of evidence differ greatly among the States and Territories. The ALRC was concerned that federal courts may apply a different law of evidence depending on where they happen to be sitting.¹¹ Should the federal evidence law be changed to require uniformity among federal courts, different laws may apply in different tribunals sitting in one State or Territory. We consider this to be equally undesirable. The federal. and State tribunals sitting in New South Wales should all apply the same rules of evidence. Parties and practitioners should not be confused and inconvenienced by a need to take account of two separate sets of rules in one State. The pending implementation of cross-vesting legislation in all States and federally, which vests State Supreme Courts with the civil jurisdiction of the federal courts (Federal Court and Family Court) and vice versa, and extends to cross-vesting among the State Supreme Courts, heightens the need for uniform laws of evidence. In the absence of uniformity, two undesirable consequences could flow. First, a plaintiff may be able to choose the jurisdiction for commencing an action in which the laws of evidence seem most favourable to the claim. The court asked to transfer such an action may also take into account what rules of evidence are likely to be applied in any transferee court. Considerations as to the rules of evidence to be applied would then add another dimension to the choice of forum. Second, the lack of uniformity could result in the absurd situation of one court hearing two similar claims applying a different law of evidence to each. This could occur because a transferee court has a discretion to apply the law of evidence of any superior court in Australia that it considers appropriate to the transferred action before it. However, a court determining a claim which originated before it, must apply the rules of the jurisdiction in which it sits. Uniformity, then, is an important reason for considering reform of evidence law in New South Wales and is our primary reason for adopting the great bulk of the ALRC’s proposals without amendment.

1.11 The existing laws themselves, are clearly in need of reform irrespective of the desire for uniformity. They are excessively technical and have developed in an ad hoc manner. There is considerable inconsistency and uncertainty. There is a clear need for systematic revision and the enactment of a comprehensive package of rules. The ALRC proposes such a package which is the result of a carefully considered balancing process. We recognise that amendments to this package should only be proposed with the greatest of care and for the soundest, of reasons.

1.12 The proposals are a package not only because the various provisions balance each other but also because each provision reflects a set of articulated policies and the whole is internally consistent in policy terms. Therefore, as we are in agreement with the ALRC’s policy position, we have resisted minor tinkering with the draft legislation.

1.13 We agree with the ALRC that the primary purpose or role of the rules of evidence is to facilitate the fact-finding task of the Court.¹² Our proposals, like those of the ALRC, “are directed primarily to enabling the parties to produce the probative evidence that is available to them”.¹³ This does not mean that a trial should be exclusively a search for the truth, although it does involve a serious attempt to reach conclusions about what occurred in the past”.¹⁴ The fact-finding objective may have to give way on occasion to considerations of fairness, as well as of cost and time.¹⁵

1.14 We agree that the fact-finding objective is more likely to give way in criminal than in civil trials. Criminal trials have a “larger and more general object”, namely, “to serve the purposes of the criminal laws, which are to control, deter and punish the commission of crime for the general good, [doing so] with an approach and underlying philosophy that differs from that of the civil trial”.¹⁶ “Individual liberty and civil liberties are at stake in criminal trials”.¹⁷

1.15 We agree with the ALRC’s guidelines for striking the balance between the prosecution and the accused in criminal trials.¹⁸

• The risk of convicting the innocent should be minimised even if that means some, people remain unconvicted and unpunished.
• The criminal trial is accusatorial. The accused person is presumed innocent until proven guilty and he or she is under no obligation to assist the prosecution.
• Therefore, the central question in a criminal trial is whether the Crown has proved the guilt of the accused person beyond a reasonable doubt.
• For a variety of independent reasons, accused people are entitled to the benefits of certain rights and protections:
  
  - in recognition of their personal dignity and integrity;

  - as a measure of the overall fairness of the society to the individuals within it; and

  - to give credibility to the idea of the adversary system as a genuine contest.

1.16 Civil trials can more readily be conceived as dispute resolution mechanisms. We agree that the rules of evidence in civil trials should:

• facilitate a genuine attempt to find the facts;
• enhance procedural fairness;
• enable expedition and cost-reduction; and
• avoid anomaly, technicality, and obscurity.¹⁹

1.17 We agree that generally the law should be expressed in the form of clear and simple rules, minimising judicial discretion. We also agree that the same rules of evidence should apply to both jury and non-jury trials.

[I]t should not be assumed that there is necessarily such a difference between the abilities of judicial officers and jurors that different rules should be developed for jury and non-jury trials.²⁰

1.18 Finally, the rules of evidence should be formulated in the light of modern knowledge about human behaviour and perceptions. They should also take into account modern technological developments.

1. LRC 17.

2. LRC 29.

3. WP 21.

4. DP 7.

5. DP 8.

6. DP 9.

7 LRC 45.

8. ALRC 26 (Interim).

9. ALRC 38.

10. ALRC 38, 19.

11. Id, summary, para 3.

12. Id, Summary, para 8.

13. Ibid.

14. Id, para 32.

15. Id, Summary, para 8.

16. Id, para 35.

17. Id, Summary, para 9.

18. See Id, para 35.

19. See Id, para 34.

20. Id, para 28(b).