Wednesday, January 19, 2005

Evidence law reform a boost for business: ALRC

The introduction of a single set of evidence laws, applicable across the whole of Australia, would not only avoid confusion but would reduce legal costs for business, the Australian Law Reform Commission said yesterday.

The ALRC has released a consultation paper, Review of the Evidence Act 1995, as the start of one of the most significant legal inquiries ever conducted in this country.

The review is being conducted by the ALRC in association with the New South Wales Law Reform Commission, the Victorian Law Reform Commission and the Tasmania Law Reform Institute.

ALRC President Prof David Weisbrot also welcomed the federal Government's announcement of a new ALRC Commissioner--Associate Professor Les McCrimmon--who will have direct responsibility for the ALRC's evidence review.

Assoc Prof McCrimmon, from the University of Sydney, is an expert in the laws of evidence and procedure, trial practice and real property. He is a member of the management committee and faculty of the Australian Advocacy Institute, and has been a member of various NSW Bar Association Committees.

"We're delighted to have Prof McCrimmon on board. He brings to the Commission a sound theoretical understanding of evidence law, coupled with a working knowledge of the practical application of this law in the courts. His expertise will be invaluable as we move towards a uniform, national approach to evidence," Prof Weisbrot said.

Prof Weisbrot said while the harmonisation of evidence regimes is a high priority for the inquiry, the Issues Paper also considers such key issues as:

*client legal privilege (or 'legal professional privilege', as it is known in common law jurisdictions);
*the 'hearsay rule' and its many exceptions; and
*the impact of evidence laws on vulnerable witnesses.

"It is a decade since the federal Evidence Act was passed--as a result of a previous ALRC inquiry into evidence laws--and parallel legislation has been enacted in NSW, the ACT, Tasmania and Norfolk Island. However, the other states and territories have their own evidence laws," he said.

"The Evidence Act regulates the way in which evidence is collected, presented and evaluated in criminal and civil court proceedings.

The rules of evidence contained in the Act are, therefore, central to operation of the whole justice system. "In some states lawyers need to be skilled in at least two different evidence regimes--and more importantly, it is unnecessarily complicated for litigants and costly for business.

Companies have to contend with different rules on such important matters for business as client legal privilege and the storage and maintenance of corporate records.

Evidence law reform a boost for business: ALRC "And, of course, if litigation is required, the case will have to be prepared and presented differently, depending upon where it is being heard", Prof Weisbrot said.

"Anecdotally, commercial litigators seem to favour operating under the Evidence Act regimes, and file accordingly."

Prof McCrimmon said many people within the legal profession believed the sections of the Evidence Act relating to client legal privilege were in urgent need of reform.

"At the moment, in jurisdictions where the uniform Evidence Acts operate, the common law rules apply in pre-trial evidence gathering processes such as discovery and subpoenas, but then the Evidence Act applies during the trial itself."

"There are significant differences between the common law and the client legal privilege sections of the Evidence Act. It has been strongly suggested to us that it is unsatisfactory to have two sets of laws applying concurrently to client legal privilege and that the Act requires urgent reform".

Prof McCrimmon said another important topic for the inquiry to examine will be the 'hearsay rule' and its numerous exceptions.

"The purpose of the hearsay rule is to exclude statements made out of court on the basis that their reliability cannot be tested. But there are many exceptions. For example, the Evidence Act provides an exception to the rule where the events recalled were 'fresh in the memory' of the witness.

"This has been interpreted by the courts as normally meaning a period of hours or days--but it may well be too restrictive when applied to complaints about a sexual assault, where delays in the complaints of a child or other sexual assault victim are not uncommon," he said.

Prof McCrimmon said the Issues Paper also considers the role of the Evidence Act in limiting harassing, intimidating or offensive questions during cross-examination. The inquiry is seeking views on whether concerns exist regarding the types of questions being asked of vulnerable witnesses, including child witnesses and complainants in sexual offence proceedings.

Other key issues to be considered by the inquiry involve:

*the breadth of judicial discretion to admit or exclude evidence;
*whether some rules of evidence should be different in trials conducted without a jury;
*opinion evidence, including expert evidence;
*evidence of confessions and admissions;
*evidence produced to demonstrate a tendency or coincidence;
*the credibility rule and its exceptions; and
*the examination and re-examination of witnesses, before and during proceedings.

The Issues Paper summarises the existing evidence regimes in Australia, outlines the areas under review and seeks submissions (anything from handwritten notes and emailed dot-points to detailed legal commentary) from interested parties by 18 February 2005. The Issues Paper is free click here. or available from the ALRC.

A more detailed Discussion Paper--containing options for reform--will be released in mid-2005, with the ALRC's final report due to be delivered to the federal Attorney-General in December 2005.

Media contact: Lani Blackman on 0421 277 749 or (02) 8238 6306 for interviews, copies of the Issues Paper or copies of Prof McCrimmon's CV.

Further information on the work of the Commission can be found at:

The Issues Paper


By ALRC posted 19 January 05