Uniform Evidence Law

"CHAPTER 1: THE NATURE OF EVIDENCE LAW, ITS HISTORICAL FOUNDATIONS AND THE UNIFORM EVIDENCE ACTS1.1 The nature of evidence law1.1.1 Evidence law is procedural, not substantive1.2 The objectives of evidence law — truth, discipline,protection1.2.1 Truth objective is important1.2.2 Disciplinary objective — arguably flawed1.2.3 Protective objective1.2.4 Other objectives1.3 Continued reform of evidence law1.4 The historical foundations of evidence law1.4.1 Early modes of trial1.4.2 Reform to the modes of trial1.4.3 Medieval juries1.4.4 The advent of law reporting1.4.5 The Victorian era1.4.6 Evidence law in Twentieth Century Australia1.5 The Uniform Evidence Acts1.5.1 Jurisdictions applying the Act — the Cth, ACT, NI, NSW, Tas, Vic and the NT1.5.2 Application of the Act to proceedings1.5.3 Structure and interpretation of the UEA — consistency and inconsistency1.6 The approach to resolving evidential issues under the ActCHAPTER 2: OVERARCHING CONCEPTS: ROLE OF JUDGE AND JURY, BURDEN AND STANDARD OF PROOF AND TYPES OF EVIDENCE2.1 Introduction2.2 The nature of court proceedings and the roles of the judge and jury2.2.1 Rules of evidence operate across courts and tribunals2.2.2 Rules of evidence are stricter in criminal cases2.2.3 Adversarial process2.2.4 Order of proceedings and witnesses2.2.5 Fact finder is either judge or juror2.2.6 Voir dire — procedure for determining admissibility of evidence2.3 Burden and standard of proof2.3.1 Burden (or onus) of proof — civil and criminal proceedings2.3.2 Standard of proof — civil proceedings — balance of probabilities 2.3.3 Standard of proof — criminal proceedings — beyond reasonable doubt2.3.4 Standard of proof — admissibility of evidence — balance of probabilities2.3.5 Standard of proof — evidential burden — prima facie case2.4 Types of evidence2.4.1 Verbal, documentary and physical evidence2.4.2 Facts in issue2.4.3 Direct and circumstantial evidence2.4.4 Facts that do not need to be proved by evidenceCHAPTER 3: VERBAL EVIDENCE: WITNESSES — COMPETENCE, COMPELLABILITY AND EVIDENCE IN CHIEF AND CROSS-EXAMINATION3.1 Introduction3.2 Competence and compellability3.2.1 Competence3.2.2 Compellability3.2.3 Minor exceptions to compellability3.2.4 Major exception to compellability — family members of the accused 3.2.5 Major exception to compellability — the accused3.2.6 The rationale for the right to remain silent3.2.7 The extent of comment that can be made about the exercise of the right of silence3.3 Examination in chief, cross-examination and reexamination3.3.1 Calling witnesses3.3.2 Examination in chief3.3.3 Reviving memory3.3.4 Unfavourable witnesses — cross-examining a party’s own witness3.3.5 Cross-examination3.3.6 Prior inconsistent statements3.3.7 The need to inform witnesses of the intention to assert contrary facts3.3.8 Re-examination3.3.9 Re-opening casesCHAPTER 4: DOCUMENTARY EVIDENCE AND OTHER EVIDENCE4.1 Introduction4.2 Documentary evidence4.2.1 What is a document?4.2.2 Proof of the contents of documents4.2.3 Voluminous and complex documents4.2.4 Authentication of documents 4.3 Other evidence 4.3.1 Introduction4.3.2 The nature of ""other evidence""4.3.3 Other evidence outside the courtroom4.3.4 Other evidence in the courtroom4.4 ConclusionCHAPTER 5: RELEVANCE5.1 Introduction 5.2 Relevance and admissibility5.3 Relevance — definition5.4 Provisional relevance and inferences as to relevance5.5 ConclusionCHAPTER 6: THE HEARSAY RULE6.1 Introduction6.2 Hearsay and original evidence6.3 Hearsay — the exclusionary rule6.3.1 Previous representation made by a person6.3.2 To prove a fact that was intended to be asserted6.3.3 Implied hearsay and the intention of the maker of the representation6.3.4 The intention requirement and express representations6.3.5 Summary — identifying hearsay evidence6.4 Exceptions to the rule against hearsay6.4.1 Section 60 — evidence that is relevant for a non-hearsay purpose6.4.2 First-hand hearsay6.4.3 The first-hand hearsay exceptions — admissibility of first-hand hearsay6.4.4 Unavailability of witnesses6.4.5 First-hand hearsay in civil cases6.4.6 First-hand hearsay in criminal cases6.4.7 Criminal proceedings where maker is unavailable — s 656.4.8 First-hand hearsay in criminal cases where maker is available — s 666.4.9 First-hand contemporaneous statements about a person’s health etc — s 66A6.4.10 Other exceptions to the hearsay rule6.4.11 Business records — s 696.4.12 Tags and labels — s 706.4.13 Electronic communications — s 716.4.14 Aboriginal and Torres Strait Islander traditional laws and customs — s 726.4.15 Evidence as to reputation6.4.16 Interlocutory proceedings — s 756.4.17 Evidence of domestic violence complainants — New South WalesCHAPTER 7: OPINION EVIDENCE7.1 Introduction 7.2 Rationale7.3 Distinction between facts and opinions 7.4 Opinion rule — s 767.5 Exception: lay witness opinions — s 787.6 Exception: expert witness opinions — s 797.6.1 Specialised knowledge7.6.2 Training study or experience7.6.3 Wholly or substantially based on that knowledge7.6.4 Common law basis rule7.7Discretionary exclusion 7.8 Ultimate issue and common knowledge rules7.8.1 Ultimate issue7.8.2 Common knowledge7.9 Evidence of previous judgments and convictionsCHAPTER 8: ADMISSIONS8.1 Introduction8.1.1 Admissions under the Uniform Evidence Act8.2 What is an admission?8.2.1 Against interest8.2.2 Previous representations8.3 Admissions are an exception to the hearsay and opinion rules8.3.1 Admissions that are neither hearsay nor opinion8.4 Exclusion of certain admissions8.4.1 Exclusion of evidence of admissions that are not first-hand8.4.2 Admissions not admissible as against third parties8.4.3 Admissions influenced by violence and other conduct8.4.4 Admissions by criminal defendants in the presence of investigators8.4.5 Exclusion of records of oral questioning and mandatory electronic recording of admissions8.5 Evidence of silence8.5.1 Failure to mention a defence later relied on8.5.2 Adverse inferences from silence in New South Wales — s 89A8.6 Discretionary exclusion of admissions8.6.1 The ""unfairness"" discretion — s 908.6.2 The discretion to exclude improperly obtained evidence and s 139CHAPTER 9: TENDENCY AND COINCIDENCE EVIDENCE9.1 Introduction9.2 The admissibility of similar fact evidence — the various common law tests and overview of the UEA test9.2.1 Makin — admissible if relevant test9.2.2 Admissible if relevant otherwise than via propensity test9.2.3 Probative value must outweigh prejudicial effect test9.2.4 Another rational view test9.2.5 Just to admit it despite prejudicial effect test9.2.6 Overview of the test for similar fact evidence under the Act9.2.7 Meaning of ‘‘significant probative value’’9.2.8 Meaning of ‘‘prejudicial effect’’9.2.9 ‘‘Substantially outweighs’’ — the balancing exercise in criminal cases9.2.10 Application of the tests: divergence of approach9.3 Evaluation of dangers associated with similar fact evidence9.4 The importance of similar fact evidence9.4.1 The conceptual basis for the relevance of similar fact evidence: propensity reasoning?9.5 Reform suggestions9.6 Similar fact evidence when it is not directly relevant to a fact in issue9.6.1 Relationship evidence9.6.2 Res gestae doctrine9.7 ConclusionCHAPTER 10: CREDIBILITY AND CHARACTER EVIDENCE10.1 Introduction10.2 Credibility of witnesses10.2.1 The general rule — credibility evidence inadmissible10.2.2 Credibility evidence of witnesses and people in relation to whom representations are admitted — when admissible10.2.3 Special situation of prior convictions of accused10.2.4 The finality rule and exceptions to the rule10.2.5 Further exceptions: re-establishing credibility — re-examination and allegations of recent invention10.3 Good character evidence by accused10.4 Credibility evidence given by experts on credibility10.5 Protection of complainants in sexual offence casesCHAPTER 11: IDENTIFICATION EVIDENCE11.1 Introduction11.2 The dangers associated with identification evidence11.3 The preference for identification parades11.4 Picture identification evidence11.5 Warnings to jury about the use of identification evidence11.6 Voice identificationCHAPTER 12: UNRELIABLE EVIDENCE: CORROBORATION AND WARNINGS12.1 Introduction12.2 Corroboration12.2.1 Corroboration and circumstantial evidence12.2.2 Other categories of corroborative evidence12.2.3 Accomplices and corroboration 12.3 Warnings — s 16512.3.1 Examples12.3.2 Other examples12.4 Children and warnings — s 165A12.5 Prosecutorial delay — s 165BCHAPTER 13: PRIVILEGES13.1 Introduction13.1.1 Common law privileges and s 131A13.1.2 Privilege claims13.2 Client legal privilege13.2.1 Rationale for the privilege13.2.2 The scope of client legal privilege13.2.3 Loss of client legal privilege13.3 Privilege against self-incrimination13.3.1 Rationale for the privilege13.3.2 Scope of the privilege13.3.3 Abrogation of the privilege13.3.4 The accused as a witness13.3.5 Corporations13.4 Matters of state13.4.1 Rationale13.4.2 Scope13.4.3 Class and content claims13.4.4 Court inspection13.5 Settlement negotiations13.5.1 Rationale13.5.2 Scope13.5.3 Exceptions13.6 Privileges in respect of confidential communications13.6.1 Introduction13.6.2 Professional confidential relationship privilege13.6.3 Journalists’ privilege13.6.4 Sexual assault communications privilege13.6.5 Religious confessions13.7 Judicial reasons privilegeCHAPTER 14: DISCRETIONS TO EXCLUDE EVIDENCE14.1 Introduction14.2 Granting leave — s 19214.3 The relevant provisions — the discretions14.3.1 Section 135 discretion14.3.2 Section 136 discretion14.3.3 Section 137 discretion14.3.4 Meaning of ""unfairly prejudicial""14.4 Improperly and illegally obtained evidenceCase TableLegislation Finding ListIndex"