Differences between civil and criminal cases

The law of evidence has to be applied in both civil and criminal cases. It is desirable as a matter of simplicity and consistency to keep it as uniform as possible. However it has always been recognized that there are features of criminal cases that call for special rules of procedure and evidence. Because liberty and reputation are at stake, it is accepted that the law should be tender to the rights of the accused, and be more ready to risk the acquittal of the guilty than the conviction of the innocent. A well-known example is the higher standard of proof demanded in criminal cases. Civil liberties are involved not only in the courtroom, but in the police investigation, and one strand in the law of evidence has been an attempt to discourage bad police practice by rejecting evidence obtained in certain ways.

The Commission has borne these considerations in mind in making its recommendations. It has also borne in mind that the prosecution usually has skilled professional investigators at its disposal, in the form of the police force, and that the ordinary accused, and for that matter the ordinary civil litigant, does not have similar resources. It is therefore reasonable to expect more of the prosecution in the way of locating and producing evidence. The Commission’s proposals distinguish in a number of ways between civil and criminal cases, and some of them may be mentioned here.

In the main recommendation, failure to call as a witness the person who made a statement is more easily justified in a civil case than in a criminal case. In a criminal case it is not sufficient justification that he is outside New South Wales and reasonable efforts have failed to procure his testimony, or that, not being compellable, he refuses to give evidence, or that he cannot reasonably be expected to have a useful recollection, or that undue delay, expense or inconvenience would be caused, or that having regard to his relations with any party to the proceeding, it is unreasonable to expect the party tendering the out-of-court statement to call him as his witness. Notwithstanding such difficulities, he must normallv be got to court if his statement is to be used. This applies equally to prosecution and defence, but as already mentioned, the court has discretions which it may exercise in favour of an accused.

Where an out-of-court statement by one accused person is admitted on the basis of justification or discretion, it cannot be used against another person charmed in the same proceeding unless he consents. There are also restrictions on the admissibility in criminal proceedings of statements made after the police investigation of the alleged offence had commenced.

The special rules which now govern the admissibility of confessions in criminal cases are not affected by the recommendations. The findings of a Royal Commission or similar body would become admissible in civil but not in criminal proceedings. Provisions about the admissibility of a witness’s proofs are mentioned later.

Preservation of traditional trial procedure

An argument acainst the wider admission of hearsay evidence has been that it would undermine traditional features of our trial system, such as the giving of direct oral evidence before the court, the testing of evidence by cross-examination, and the continuous trial. The recommendations are moulded in a number of ways to minimize these risks.

Under the main recommendations, a person whose statement is tendered must be called, unless there is one of the acceptable justifications for not calling him. If he is called, the court may require that he gives oral evidence before the statement is tendered. If he is not called, it is necessary in most cases to call someone who can give direct evidence of, and be cross-examined about, the making of the statement.

Proofs of evidence, i.e., statements taken to set out a proposed witness’s possible evidence, may be excluded if he is called as a witness. In a criminal case they are not admissible even if there is justification for not calling him, unless the court so orders for special reasons.

Moreover the fact that evidence is made admissible does not mean that it will be believed. It has to be weighed by the court, and the recommendations list a number of matters to be considered. The first is whether there is available evidence of greater weight which is not tendered. Hence parties will have an incentive to call the strongest available evidence on any matter seriously in dispute.

Some attempts in other countries to reform the rule against hearsay require a party wishing to use such evidence to give notice to the other side, so as to eliminate surprise and possible applications for adjournment. The Commission considers that such a requirement is not generally necessary, and would create too great an obstacle to the use of the wide range of evidence which it thinks should be admissible. Sometimes, too, there is good reason for not disclosing in advance the availability of evidence which exposes the falsity of an opposing case.

However there will be many cases in which it is reasonable to expect a party to give notice of his intention to give hearsay evidence, and if he fails to do so, he will run the risk of being penalized. Under the recommendations, if evidence is tendered which unfairly surprises a party, the court may reject it, or admit it on terms. Hence it could require a party to pay the costs of an adjournment, if the adjournment was the result of his unreasonable failure to give notice to the other party.

In case substantial difficulties should arise in the future, it is recommended that there should be power to make rules of court about the giving of notice.