“The ideal of the law of evidence

The law of evidence is in constant use. It is basic to the proper administration of justice. Yet in our view much of it is complicated, obscure, irrational, and sometimes unjust in operation. Parts of it are only made tolerable by being ignored, deliberately or inadvertently, by the parties and the courts, particularly in civil cases. Those concerned with the administration of justice - whether practitioners, witnesses, parties, observers or the wider public - will not have respect for our system of trial unless the rules of evidence are rational and just. We think that the ideal to which the law of evidence should move in all areas, unless good cause to the contrary is clearly shown, is to admit such material as an intelligent layman carefully making important decisions in his own affairs would regard as worth taking into account, subject to restrictions demanded by the need to preserve a substantially oral adversary system of trial (where such a system is used) and to dispose of litigation expeditiously. The law falls well short of this ideal.”

In these words the Law Reform Commission of New South Wales has stated the ideal to which the law of evidence should move. In its 29th Report the Commission has made recommendations to move a major part of the law of evidence - the rule against hearsay and related rules - closer to that ideal. That Report is heavy reading. It examines in detail the existing law, which is often complex and obscure, and tests its recommendations against that complicated background.

This paper gives an outline of the problems which the Commission has tackled, and of the recommendations which it has made. In order to explain the general nature of the recommendations in a way that is brief and readable, they have often been summarized in a form that does not fully reflect the details. Many subsidiary provisions are not mentioned at all. Those who want only an overview of the policy adopted will find it here. Those who are concerned to be accurate in detail should go to the Report, and, in particular to the draft Bill included in it.

J. H. WOOTTEN
Chairman.