I. INTRODUCTION
5.1 It has not been possible for the Commission or the Parliamentary Counsel’s Office to undertake a full examination of the consequential amendments which may be necessary following implementation of the ALRC draft bill in this State. With one exception, the Evidence (Reproductions) Act 1967, the following comments are limited to inconsistencies apparent between the bill and recent amendments to State legislation.
II. COMPARISON OF STATE LEGISLATION AND THE ALRC DRAFT BILL
A. Crimes Act 1900, ss413A, 413B and ALRC bill c11 91-95 -Character Evidence and Credibility
5.2 The ALRC draft bill would seem to cover the same field as is covered by the Crimes Act 1900. As a consequence we recommend that ss413A and 413B be repealed expressly.
5.3 Section 413A(1) protects the accused from cross-examination on any matter which tends to reveal
The protection only extends to tendency evidence, and not to evidence admissible to prove commission of the offence by the accused [sub-s 2]. The protection is also lost if the evidence is necessary to prove the innocence of a co-accused [sub-s 3]. Where such evidence is sought from a witness, the court may admit it if it is of the opinion that the main purpose of the question is to raise an issue of the witness I s credibility [ss4]. This exception does not extend to questioning of the accused unless the court permits it “in the interests of justice”. It does not prevent a co-accused from questioning the accused on tendency evidence. [ss5].
5.4 Clause 91 of the ALRC draft bill allows tendency evidence to show bad character where evidence of good character has previously been admitted. Clause 91 allows tendency evidence of both good and bad character despite the hearsay, opinion and tendency rules, but cl 93 requires leave of the court before the accused can be cross-examined on it. In combination cls 91 and 93 would seem to cover the field of ss413A (1), (2) and (5).
5.5 Clause 92 deals with the character of co-accuseds. It permits evidence of expert opinion in relation to a co-accused and evidence to rebut it. This is inconsistent with s413 which permits evidence of the witness s own knowledge of the habits disposition and conduct of another person (whether the accused or another) whether the witness has expert knowledge or not. Evidence going to the credibility of a witness is permitted by cl 96, so long as it has “substantial probative value” as that is defined in cl 96(3). This would seem to overtake much of cross- examination of the accused in the interests of justice untouched (this is also contained in s413A(4). Cl 93 provides the necessary protection for the accused. Our conclusion is that s413A should be repealed.
5.6 Section 413B permits the accused to give evidence of good character or call and question witnesses on such evidence, but s 413B (2) provides that where the accused does this, the prosecution and co-accuseds may offer evidence of bad disposition and cross-examine the accused on the issue. Clause 91(4) would seem to achieve the same. It makes the general statement that where tendency evidence has been called to prove good character of the accused, the hearsay, opinion and tendency rules will not prevent evidence of bad character. We recommend that s413B be repealed.
B. Crimes Act s409B and ALRC bill, Part 5, Divisions 5 and 6-Admissibility of Evidence of Previous Sexual Experience.
5 7. Section 409B(3) makes evidence of sexual reputation inadmissible in “prescribed sexual offence proceedings” [s405B(l) offences] with some exceptions. The exceptions are:
- evidence of experience at or about the time of the offence and events forming part of the offence
- evidence of an existing or recent relationship between the complainant and the accused
- evidence of sexual disease possibly transmitted between the parties
- evidence of an allegation that commission of the offence had followed the discovery of pregnancy or disease in the complainant
Such evidence may be sought if “its probative value outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission” (s409B(3)).
5.8 The final exception to the admission of this evidence appears in s409B(5). This concerns evidence of sexual experience which is revealed in the prosecution case and which indicates that prejudice to the accused is likely if cross-examination of the complainant is not permitted (s409B(5)). None of these questions is to be put without prior leave of the Court sought in the absence of the jury.
5.9 This provision is part of a Code Established for the trying of sexual offences introduced by the Crimes (Sexual Assaults) Amendment Act 1981. The detail does not appear in the ALRC Bill, although its provisions may be affected by the general provisions in Divisions 5 and 6 covering conduct, character and credibility. A savings provision will be needed in the new Evidence Act to ensure s409B is preserved. Some examples may be given of the likely effect of the ALRC bill if s409B is not preserved:
- Clause 84(3)- Division 5 does not apply where the evidence of character or conduct is a fact in issue. This is similar to s409B(3) which permits evidence of sexual experience forming part of the offence or occurring at about the same time as it.
- Clause 87 would seem to allow reception of evidence of sexual experience in circumstances in which s409B would exclude it, eg evidence of previous intercourse with the accused is allowed by s409B(3)(b) in relation to all existing or recent relationship between the complainant and the accused.
- Clauses 96, 98 and 101 , in relation to proof of credibility, may be interpreted inconsistently with s409B in that they are more general than s409B.
C. Children (Criminal Proceedings) Act 1987, s13 and ALRC bill, Part 5, Division 3 Police Questioning of Children
5.10 Section 13 of the Children (Criminal Proceedings) Act 1987 continues a procedure which has been a feature of this State’s criminal law since 1977.1 It prevents the police using evidence obtained from children in criminal proceedings unless the interview from which the evidence was obtained was conducted in the presence of a responsible adult. Exceptions to the regime, provided in s13(l) (b) , are in the discretion of the court.
5.11 There is no equivalent scheme in Part 5 of the ALRC bill, however, cl 14 of the bill which saves other State legislation, should have the effect of preserving s13 of the Children (Criminal Proceedings) Act.
D. Evidence (Reproductions) Act 1967 and ALRC draft bill, Part 6, Divisions 2 and 3, c11 123-
5.12 The ALRC provisions are intended to “address the issue of the method by which the contents of writings and modern documents such as tapes and discs may be proved”.2 The intention was “to avoid adding to the requirements of the existing common law and statutory rules” there being “no need to complicate matters further”.3 Thus, the existing law, “as to the permitted methods of proving the contents of a document”4 (including the best evidence rule)5 was abolished “a new rule of exclusion substituted to which exceptions were then provided.”6
5.13 The general rule proposed in the ALRC draft bill is that oral evidence and copies are generally “inadmissible as evidence of the contents of the original document. There were proposed, however, a number of exceptions covering all modern information storing media, such as computer discs, tapes and microfilm”.7
5.14 The ALRC has t has proposed a new code for the proof of contents of documents which is not intended to coexist wine existing models. The Commission has approved the ALRC model and therefore recommends repeal of the Evidence (Reproductions) Act 1967.
E. Jury (Amendment) Act 1987, ss68A, 68B and ALRC bill, c1 111(3)-Disclosure of Jury Deliberations
5 15. These provisions all address the question of the disclosure by jurors of information about their deliberations. They are not inconsistent and therefore may stand together. Section 68B forbids a juror from wilfully disclosing information about the jury’s deliberations during the trial , unless with the consent or at the request of the judge or coroner, while s68A forbids the soliciting of such information. Clause 111(3) is complementary to these provisions in that it prevents the information being used in evidence, except in the proceedings before the court.
F. Interpretation Act 1987, ss44, 45, 51, ALRC bill c11 120, 129, 130-and Evidence Act 1898, ss15-19, 24,24A-Judicial Notice of Documents and Presumptions of Validity
5.16 Although phrased in different language, these provisions are not inconsistent. The provisions of the Evidence Act 1898 which relate to the same or similar matters are more detailed, however, and will need to be examined for consistency on implementation of the ALRC bill. The sections of the Evidence Act concerned are ss15, 16, 17, 18, 19, 24 and 24A.
G. Evidence Act 1898, s42A and ALRC Bill cl 139-Uncorroborated evidence of children.
5.17 On the implementation of the ALRC bill it may be necessary to make provision to ensure that s42A of the Evidence Act continues to operate. Section 42 allows the jury to be warned that it is unsafe to convict a person on the uncorroborated evidence of a child. The provision is not saved by cl 14 of the ALRC bill because cl 139(3) applies “notwithstanding any rule, whether law or practice, to be contrary”. Cl 139 Makes it unnecessary to warn the jury that
“it is dangerous to act on uncorroborated evidence”. Although the provisions are not inconsistent, it may be wise to ensure that ambiguity does not arise from their coexistence.
FOOTNOTES
1. Child Welfare Act 1939, s81C (inserted in 1977).
2. ALRC 26m 649; ALRC 38, 231.
3. Id 65I.
4. ALRC 38, 231.
5. ALRC 26, cl 48.
6. ALRC 38, 231.
7. ALRC 38, 229.
