Evidence law Essay Example

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Despite The Introduction of the Evidence Act 2008 (Vic), the Common Law Still Has a Role to Play in the Law of Evidence

Australian Law Reform Commission (ALRC) has continuously improved the legal framework in Australia since 1979 with the aim of creating uniformity including uniform evidence legislation. Rules of evidence or the law of evidence encompass the legal principles and rules that govern the proof of facts during a legal proceeding. The evidence is either used as the basis for determining whether it is applicable to a certain situation or not and the impact of fact in reaching its decisions. Facts are important and without high quality and correctly collected evidence, it becomes a challenge to prosecute a case. Due to the numerous types of evidence, collection processes, and associated activities, ALRC proposed formulation and implementation of an acceptable model to further evidence utilization. Through engagement with different stakeholders, ALRC proposed the Evidence Act 2008 (VIC). Evidence Act 2008 (Vic)1 is similar to Evidence Act 1995 (NSW)2 and the Evidence Act 1995 (Cth)3. The purpose of Evidence Act 2008 (Vic) is to create a uniform evidence law in Victoria. However, the presence of Evidence Act 2008 (Vic) does not mean other laws and legal frameworks such as common law are obsolete rather Evidence Act 2008 (Vic) supports other common law, legislation and case laws.

The premise of the Evidence Act 2008 (Vic) is to unify the laws of evidence across the states but most of the sections incorporate common law rules. However, the Act does not affect common law rule even though there are some sections that require redress. Papakosmas v R (1999) 196 CLR 2974 presents a conflict between Evidence Act 1995 (NSW) against the common law. The difference between the common law and the Evidence Act 2008 (Vic) (premised on the argument that Evidence Act 2008 is similar to Evidence Act 1995 (NSW)) is the extent of application and jurisdiction obligations.

However, there are numerous common laws that support and complement Evidence Act 2008 (Vic). For example, the Evidence (Miscellaneous Provisions) Act 19585, the Criminal Procedure Act 20096 and the Civil Procedure Act 20107 play crucial roles in supporting evidential obligations. The Evidence (Miscellaneous Provisions) Act 1958 provides statutory declarations and the authenticity of any evidence provided. Criminal Procedure Act 2009 consolidates and reforms the criminal procedure laws. Criminal Procedure Act 2009 makes changes and improvements to all processes such as appeal, trial and pretrial procedures for indictable and summary offenses: the area of concern is brief of evidence as contained in Chapters 2 and 3 and sections 39-41.8 The amendment of Criminal Procedure Act 2009 also introduces the role of Children Court in procedural processes. The extensively presented procedural also documents the role of evidence, which complements the contents of Evidence Act 2008 (Vic). Criminal Procedure Act 2009 also supports Justice Legislation Amendment Act 20109 on evidence collection. The association across these legislations indicates that it shares approaches of collecting and using evidence.

The Civil Procedure Act 2010 modernizes and reforms Victoria’s civil procedure laws.10 The Act focus on litigation procedures and the Act states the role of different stakeholders. It discusses the procedural requirements in collecting evidence and applicability of the evidence. However, the act has shortcoming since it does not discuss inadmissibility of all settlement negotiations. The inadmissibility is extensively covered in Section 131 of the Evidence Act 2008. It indicates that Evidence Act 2008 focuses on evidence and tends to complements other common law. Therefore, the Evidence Act 2008 (Vic) differentiates the rules of evidence applicable to criminal and civil proceedings such as different exclusions when it comes to hearsay provisions (criminal proceedings 65/66 and civil proceedings sections 63/64).11

Evidence Act 2008 (Vic) provides an effective flow chart that discusses evidence admissibility. However, the aspect of admissibility depends on the tendering party.12 In Lithgow City Council v Jackson (2011) 244 CLR 35213 presents that Evidence Act 2008 (Vic) places a crucial role but the evidential presentation depends on the tendering party. Lithgow City Council v Jackson (2011) 244 CLR 352 states that some of the conditions, which have to consider include any exclusion such as hearsay, relevance, and the role of the judge in excluding the evidence. The aspect of competence is raised in that the onus is on the party that points to the lack of competence. Therefore, competence and admissibility are crucial in determining the effectiveness of evidence in judicial proceedings.

The relevance of evidence is crucial and it is usually the preliminary question. The relevance of evidence is discussed in section 55 of the Evidence Act 2008 (Vic) whereby the evidence would affect rationality of the evidence.14 In Washer v Western Australia (2007) 234 CLR 492 as presented in the High Court’s criminal proceedings, the relevance relied on whether the evidence could indirectly or directly affect the assessment of the existence of a fact in criminal proceedings.15 It is based on the question of probability and requires the process of reasoning to the fact of acquittal. “Fact in issue” is crucial in the evidential process in that it can affect the jury’s assessment of a fact. Strengthening and circumstantial evidence is also crucial in supporting procedural theory over another. In common law rules, the evidence is given names such as “legal relevance,” which has a higher threshold than minimal relevance. Evidence Act 2008 (Vic) section 135 addresses this shortcoming in common law rules whereby the court is tasked with weighing evidence based on probative value and prejudicial value while excluding evidence. Moreover, section 137 protects areas where probative value has a lower weight compared to prejudice. Based on this example, Evidence Act 2008 (Vic) complements the common law rules through clarifying procedural and prosecution complications.16

Evidence Act 2008 (Vic) operates within the common law jurisdictions in regards to engaging with the witness and victims depending on the circumstances. Across the common law jurisdictions, the expectations of a victim at trial are to further the interests of the state’s prosecution. Australian jurisdictions have certain measures of protecting witnesses including the victims when presenting evidence. In addition, Australian jurisdictions also formulate rules and laws that prohibit questioning that may result in victims’ humiliation, difficulty, embarrassment, and distress. The focus is advancing evidentiary and procedural safeguards.17Evidence Act 2008 (Vic) may champion legal frameworks on collecting and storing the evidence but the common law jurisdictions consider the distress or challenge the victims or witness faces. Hence, protection premised on common law ensures the Evidence Act 2008 (Vic) operates seamlessly.

Collecting special evidence or unique evidence especially related with sexual offense trials have been integrated into numerous legislations. For example, prerecording of trial evidence is replicated in other Australian jurisdictions.18 Australian Capital Territory and South Australia apply similar protective measures to Victorian. The purpose is to protect the victim from intimidation, embarrassment, and distress in the court. The decision to use pre-recording is allowed to all the persons involved in the case and it is not a prerequisite for the judge. It more of relies on Evidence (Miscellaneous Provisions) Act 1958 in which statutory obligations is extensively discussed.19 The argument is the comfort of the victim and considering the requirements of the victim in ensuring justice is served. Some lawyers and jury may not be sensitive to the victim meaning the use of prerecording evidence is important in situations where the safety and health of the victim are considered.

Evidence Act 1995 complements Evidence Act 2008 and it operates across all territories of Australia. Evidence Act 1995 presents the competence and comparability of witnesses including lack of capacity, roles of judges and jurors, and the role of defendants in the processes. It also presents information on examination, reexamination, cross examination, documentations, hearsay, opinion, admissions, and credibility. These factors are similar to the content of Evidence Act 2008 meaning Evidence Act 199520 can be applicable in absence of Evidence Act 2008.

A mixture of common law and statute law works together in advancing the judicial objectives. According to Judiciary Act 103 (Cth) Section 79 states that the laws of each state or territory relating to the competency, evidence, and procedure are binding on courts that employ federal jurisdiction framework in that territory or state.21 It means that courts of the territories and states advancing federal jurisdiction have to apply the law of the territory or the state instead of Evidence Act 1995 (Cth).22 For example, when it comes to Victoria jurisdiction, the applicable legislation is Evidence Act 2008 but when the target is the wider reach, the appropriate legislation is Evidence Act 1995 (Cth). As a practical example, a Victorian barrister defending an individual charged with a federal crime before Victorian Supreme Court would use the Evidence Act 2008 (Vic). However, when the same barrister appears before the Family Court, the Federal Magistrates Court and Federal Court will use the Evidence Act 1995 (Cth).23 Therefore, the evidence acts and the common law apply in different jurisdictions indicating the need of specifying the nature of the criminal or civil problem and identifying the appropriate legislation.

When prosecuting a case in Supreme Court of Victoria, the applicable legislation is the Uniform Evidence Act – Evidence Act 2008 (Vic). In civil procedure rules that relate to expert evidence, the applicable framework is the Supreme Court Rules 2005 (Vic), specifically Order 44 Expert Evidence Rules.24 The VIC also provides guidelines when it comes to expert witness through the Code of Conduct as indicated on Form 44A Expert Witness Code of Conduct. Evidence Act 2008 (Vic) has to complement and integrate the wider Supreme Court Rules. The area of conflict that may occur is which takes precedence when it comes to unique evidence requirement but based on procedural regulations of the Evidence Act 2008 (Vic), Evidence Act 2008 (Vic) suffices.

Evidence Act 2008 (Vic) does not affect other Acts (s8). It preserves the operation of numerous provisions across the statute book that ensures problem of evidence utilization and collections does not impede operation obligations. For example, the Evidence Act 2008 (Vic) does not affect s38 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 199625 and the s215 of the Children, Youth and Families Act 200526. Moreover, the Evidence Act 2008 (Vic) does not address other common law of evidence areas such as the issue estoppel, res judicata, the parol evidence rule and legal and evidential burden of proof. However, the effectiveness of Evidence Act 2008 (Vic) is distinguishing between admitting evidence, tendering evidence and adducing evidence. Evidence Act 2008 (Vic) also tries to address a contagious area of illegally obtained evidence or exclusion of improperly obtained evidence. Bunning v Cross (1978) 141 CLR 54 pointed that illegally obtained information should not be used or admitted in the criminal or civil proceeding.27Evidence Act 2008 (Vic) Section 138 provides an avenue to counter the argument through determining the desirability of admitting evidence should outweigh the undesirability of admitting the evidence.28 Section 138 documents processes and conditions to meet in considering the desirability of the evidence. Hence, Evidence Act 2008 (Vic) may not meet the entire evidence and proceeding requirements but can complement or seek assistance from other legislations such as the Children, Youth and Families Act 2005.29

Evidence of events, prior conduct, reputation and character that is tendered to indicate the behavior of an individual or to counter coincidence is called propensity. Propensity evidence can be prejudicial and its probative value can be overestimated. Part 3.6 of the Evidence Act 2008 (Vic) focuses on the tendency and coincidence of evidence.30 In criminal proceedings in Victoria, the admissibility of propensity evidence is guided by Crimes Act 1958 Section 398A, which provides guidelines to weigh the impact of the decisions.31Pfenning v The Queen (1995) 182 CLR 46132 and Hoch v The Queen (1988)33 created a restrictive common law test to weigh the admissibility of propensity evidence. S97 and s98 provide rules for admission of tendency and coincidence evident when it comes to criminal and civil proceedings and presents the limits of adducing such evidence by the prosecution in criminal proceedings (s101). The basis of the argument is that the Evidence Act 2008 (Vic) clarifies areas of contention and ensures the quality of evidence rather than the character is used to advance objectives of proceedings.

Apart from the legal objectives such as the fundamentals of Evidence Act 2008 (Vic), barristers and court system personnel have to embrace moral and ethical obligations. Evidence Act 2008 (Vic) presents on procedures and processes of gathering and using the evidence but there are also roles and responsibilities of the Barristers and prosecutors. Codes of Conduct and ethics based guidelines usually comes into play in ensuring the prosecutors and barristers among other observers certain levels of decorum and ensuring the entire process is effective. For example, telling the truth in courts, authenticity, and credibility of the information, and similar processes are guided by standards and ethical frameworks beyond Evidence Act 2008 (Vic).34 Moreover, human rights and civil rights are also crucial in furthering the judicial processes, which are guided by other legal and non-legal processes. Evidence Act 2008 (Vic) forms the basis of legislation and gathering the evidence but displaying and presenting the evidence requires levels of humanity and professionalism. Pre-recording is an example of an effective approach to advance ethics and moral objectives when it comes to sexual offenses or offenses tied to dangerous situations. Hence, Evidence Act 2008 (Vic) can be used as a guidance process but a barrister or a prosecutor should appreciate the presences of other supportive legislations and frameworks.

In conclusion, Evidence Act 2008 (Vic) operates as a complementary and supportive legislation in furthering judicial processes. Evidence Act 2008 (Vic) does not operate in a vacuum but requires supportive and complementary legislations. State or territory laws and federal laws further the judicial processes but these common laws operate distinctively and in a complementary manner. For example, when it comes to federal jurisdictions certain laws and regulations apply while when it comes to state judicial process, the state based legislations suffices. For example, Evidence Act 2008 (Vic) targets the Victorian region meaning when a case is about the federal state, other legislations takes precedent. Evidence Act 2008 (Vic) forms the basis of bringing together different processes into one dictating and presenting approaches of collecting and using information in advancing civil and criminal proceedings, but the presence of supportive legislations such as the Supreme Court of Victoria 2005 guidelines ensures a better jurisprudence processes. Hence, Evidence Act 2008 (Vic) is among the numerous legislations and common law ensuring the civil and criminal proceedings are accomplished effectively.


Evidence Act 2008 (Vic)

Evidence Act 1995 (NSW)

Evidence Act 1995 (Cth)

Evidence (Miscellaneous Provisions) Act 1958

Criminal Procedure Act 2009

Civil Procedure Act 2010

Justice Legislation Amendment Act 2010

Supreme Court Rules 2005 (Vic)

Crimes (Mental Impairment and Unfitness to be Tried) Act 1996

Children, Youth, and Families Act 2005

Crimes Act 1958

  • Court Cases

Papakosmas v R (1999) 196 CLR 297

Pfenning v The Queen (1995) 182 CLR 461

1Evidence Act 2008 (Vic)

2Evidence Act 1995 (NSW)

3Evidence Act 1995 (Cth)

4Papakosmas v R (1999) 196 CLR 297

5Evidence (Miscellaneous Provisions) Act 1958

6Criminal Procedure Act 2009

7Civil Procedure Act 2010

8Criminal Procedure Act 2009

9Justice Legislation Amendment Act 2010

10Civil Procedure Act 2010

11Evidence Act 2008 (Vic)

12Civil Procedure Act 2010

13Lithgow City Council v Jackson (2011) 244 CLR 352

14Evidence Act 2008 (Vic)

15Washer v Western Australia (2007) 234 CLR 492

16Evidence Act 2008 (Vic)

17Evidence Act 2008 (Vic)

18Evidence Act 2008 (Vic)

19Evidence (Miscellaneous Provisions) Act 1958

20Evidence Act 1995

21Judiciary Act 103 (Cth)

22Evidence Act 1995 (Cth)

23Evidence Act 1995 (Cth)

24Supreme Court Rules 2005 (Vic)

25Crimes (Mental Impairment and Unfitness to be Tried) Act 1996

26Children, Youth and Families Act 2005

27Bunning v Cross (1978) 141 CLR 54

28Evidence Act 2008 (Vic)

29Children, Youth and Families Act 2005

30Evidence Act 2008 (Vic)

31Crimes Act 1958

32Pfenning v The Queen (1995) 182 CLR 461

33Hoch v The Queen (1988)

34Evidence Act 2008 (Vic)