Evidence law in QLD, SA and WA

908 Pages·2017·3.212 MB·English

by  Andrew Hemming, Robyn A. Layton

Evidence Law in
QLD, SA and WA
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Evidence Law in
QLD, SA and WA
ANDREW HEMMING
LLB(Hons)(CDU),GCertEd(Hull),MA(Dublin),
MSc(Salford),MUrbanPlan(Melb),PhD(CDU)
Senior Lecturer (Law),
School of Law and Justice,
University of Southern Queensland
ROBYN LAYTON AO QC
LLBLLM(Adelaide),DUniv(SouthAustralia)
Adjunct Professor,
School of Law,
University of South Australia
LAWBOOK CO. 2017
PublishedinSydneyby
ThomsonReuters(Professional)AustraliaLimitedABN64058914668
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Creator:Hemming,Andrew,author.
EvidencelawinQLD,SAandWA/AndrewHemming;Robyn Layton.
Includesindex.
ISBN:9780455237862(paperback)
Evidence(Law)--Queensland.
Evidence(Law)--SouthAustralia.
Evidence(Law)--WesternAustralia.
OtherCreators/Contributors:Layton,R.A.(RobynA.),author.
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Foreword
by
The Honourable John Doyle AC QC
Until the enactment of the uniform evidence legislation by a number of States and
Territories,thelawofevidenceinAustralianjurisdictionscomprisedabodyofcommonlaw
principlesandrules,supplementedorvaried(asthevariousjurisdictionssawfit)bystatute.
I will refer to this as the traditional approach.At times the mix of common law and statute
was a little untidy. Variations from jurisdiction to jurisdiction could be confusing. But I
believe the law of evidence works better as, substantially, a body of common law, than it
doesasacomprehensivestatuteliketheuniformevidencelegislation.Itiseasiertodevelop
(oradjustandimprove)commonlawprinciplesthanitistodevelopanenactment.Therules
of the law of evidence are so fact sensitive, in most situations, that the flexibility that the
common law allows is beneficial.
There is no point now in revisiting the respective merits of the traditional approach and the
uniform evidence legislation. Each has its merits. The enactment of the uniform evidence
legislation by all Australian jurisdictions, except South Australia, Western Australia and
Queensland, demonstrates that the uniform evidence legislation has gained substantial
acceptance.Thereisnoreasontothinkthatthejurisdictionsthathaveadoptedthisapproach
will abandon it. So, for the foreseeable future, Australia has two different regimes in
operation.
TheCourtsofthethreeStatesthatadheretothetraditionalapproachhavetheobligationand
the ability to develop the common law rules of evidence, as seems best for contemporary
circumstances. The High Court stands as the ultimate authority in this respect, ensuring
uniformityofthecommonlawinthesethreejurisdictions.TheCourtsofeachofthesethree
States, and practitioners and students, will undoubtedly benefit from a good understanding
of developments in the common law and statute law in the other two traditional approach
jurisdictions. Constructive interaction between all three jurisdictions can be expected.
Theauthorsofthisbookhavecorrectlyidentified,inmyopinion,theneedforatextthathas
its primary focus on the traditional approach to the law of evidence.
Theapproachthattheytakeenablescloseattentiontothestatementanddevelopmentofthe
commonlawinthreeStates,closerthanispracticalinatextthatcovers,Australiawide,the
uniform legislation in detail and the traditional approach. Their approach also provides a
comparative approach that is not practical in a text dealing with only one of the traditional
approach jurisdictions.
vi Foreword
I expect that the text will be used by Judges, practitioners and students. There are two
reasonsinparticularforsayingthis.First,theauthorsprovideaclearandcompactstatement
of the common law. Second, the authors set out the main legislative provisions of each of
the traditional approach jurisdictions. This means the reader has immediate access to a
compactstatementofthecommonlawandtothetextofthemainstatutoryprovisions.This
book is the kind of book that I expect a practitioner or Judge will bring to Court for quick
reference to the common law and statutes. For students, the book has the added advantage
of questions and case studies against which the student can test his or her understanding of
the law.
The text is not cluttered by exhaustive references to cases or statutes. Nor is the text
excessively footnoted. It is likely that those who engage in detailed research will turn to
other sources, but to me the relatively uncluttered style of the text is helpful.
Ihope,asnodoubtdotheauthors,thatthetextwillprovideareliableandcompactguideto
the law of the three common law jurisdictions and that it will facilitate a constructive
interaction between the common law jurisdictions.
One can also expect the statement and development of the common law under the
traditional approach to be influenced by the interpretation of the uniform evidence
legislation. Accordingly, the authors have covered the treatment by the uniform evidence
legislation of those parts of the common law that the uniform evidence legislation has
displaced.
All in all, this book meets a need that is the product of our mix of the common law and
statutory approaches to the law of evidence.
Preface
The driving force behind the writing of this book followed receipt of letters from the
Attorneys General of Queensland, South Australia and Western Australia which disclosed
that these three States had no present intention of joining the uniform evidence regime (see
[1.10]–[1.25]).Itwascleartousthatfortheforeseeablefuturetherewouldcontinuetobe
two evidence “regimes” inAustralia, namely, the uniform evidence legislation (comprising
the Commonwealth, New South Wales, Tasmania, Victoria, theAustralian Capital Territory
and the Northern Territory) and the three “common law” States of Queensland, South
Australia and Western Australia. We therefore decided there was merit in a book whose
focuswasuponthethree“commonlaw”States,unlikeotherevidencetextbookswhichtend
to fall into one of three categories: those that exclusively cover the uniform evidence
legislation; those that cover the whole of Australia; or those that focus on a single
jurisdiction. This book seeks to add a fourth approach by concentrating on the three
“common law” jurisdictions and comparing or contrasting the law and cases between those
States and also comparing and contrasting those approaches with the uniform evidence
legislation and its interpretation in case law.
In taking this approach, we note that generally speaking, when considering the uniform
evidence legislation, one begins from the proposition that the provisions partially codify
aspectsofthecommonlawbutinotherrespectssignificantlychangesthecommonlaw(see
Odgers S, Uniform Evidence Law (12th ed, Thomson Reuters, 2016) at [EA.Intro.150] and
therefore one examines the uniform evidence legislation to ascertain what parts of the
common law of evidence survive. By contrast, when considering the Evidence Act 1977
(Qld), the Evidence Act 1929 (SA) and the Evidence Act 1906 (WA), one assumes the
common law survives unless specifically altered by statute. In this sense, the three
“common law” States have a shared tradition which we have sought to draw out in our
book. Increasingly, now that Victoria has joined the uniform evidence regime, a judge in
one of the three “common law” States will, after considering High Court authority, often
turn to Court of Appeal authority in the other two “sister” States for guidance.
Consequently, we have endeavoured to highlight both the similarities and the differences
between the three “common law” States, so that the reader may benefit from an integrated
approachtothehistoryofthecommonlawofevidenceinAustraliaratherthantreatingeach
“common law” jurisdiction as a separate and discrete entity.
Inwritingthisbook,wehaveendeavouredtoblendtogetherourdifferinglegalbackgrounds
and skills, which are primarily as an academic in the case of Andrew and primarily as a
barrister and judge in the case of Robyn.This book also seeks to explain the principles and
rulesofevidenceinastraightforwardfashionbutwithsufficientdetailtoenableastudentor
practitioner to be familiar with aspects of the rationale of the principles and rules of
evidence and their practical application. We also address more recent and emerging issues
which reveal the increasing influence of social justice issues on the admissibility of
evidence and practice in the courts, such as when evidence is given by special and
vulnerable witnesses and the privilege which applies to counselling and confidential
viii Preface
communications. While we have each taken primary responsibility for particular chapters,
this book is a collaborative effort and we have edited each other’s work to promote a
consistent approach throughout the book. We have also sought to state the law as at 1
September 2016.
As to the structure of the book, we have divided the evidence topics into 12 chapters with
some clustering of topics within certain chapters. There is an inevitable crossover between
chapters and we have deliberately chosen to have the same cases sometimes dealt with in
several places in different chapters so that each chapter can be read as a standalone (with
cross-referencing to further enhance understanding of the case in a different context).
The book comprises the following chapters:
Chapter 1 – Introduction and evidence basics (which includes an overview of the nature of
evidence,trialprocessesandtheoverarchingthemesofadmissionandexclusionofevidence);
Chapter2–Competence,compellabilityandspecialclassesofwitnesses;
Chapter3–Proof,presumptionsandprimafaciecase;
Chapter4–Privilege;
Chapter5–Examinationofwitnesses;
Chapter6–Characterevidenceandtheaccusedaswitness;
Chapter7–Similarfactorpropensityevidence;
Chapter8–Opinion,identificationandcorroborationevidence;
Chapter9–Documentaryevidenceandrealevidence;
Chapter10–Ruleagainsthearsayandtheresgestae;
Chapter11–Confessionsandadmissions;
Chapter12–Unlawfullyandimproperlyobtainedevidence.
Ourgeneralapproachtothechaptersandtheircontentistoprovideanintroduction;explain
somekeyfeaturesorterminology;discussthecommonlawthroughthemostrelevantcases;
refertothelegislationineachofthecommonlawStatestogetherwithcaseswhichinterpret
that legislation, drawing out similarities and differences; and refer to the uniform evidence
legislation and case law, again comparing and contrasting it with the approach in the
commonlawStates.Atvariouspointsthroughoutthechapterswehaveincludedsummaries
or conclusions which we consider capture the earlier discussions, but we also note that
readers may not necessarily agree with those encapsulations. In order to enhance this book
so that it is a useful resource for students, at the end of each chapter we have inserted a
section headed “Assessment Preparation” under which there are active learning questions
and also specific problem questions with scenarios which can be discussed by students
within their evidence courses.
We are especially grateful to the Honourable John DoyleAC QC, for agreeing to write the
Foreword to our book. He was until his recent retirement, an outstanding barrister and
jurist; having served as the SouthAustralian Solicitor General between 1986 and 1995 and
the Chief Justice of the Supreme Court of South Australia between 1995 and 2012. His
passion for legal education, notably for the judiciary is demonstrated by his membership
and presidency of the National Judicial College ofAustralia.
Preface ix
We would also like to thank the dedicated team at Thomson Reuters comprising Natasha
Naude, Janet Armstrong, Elizabeth Gandy and Lalitha Vyamajala, for commissioning the
book, as well as for providing encouragement and skilled editorial services over the 18
months it has taken us to write this book. Robyn also acknowledges the excellent research
and editorial contributions to her work provided by two practising lawyers, Anne Sibree
initially and Lewis Winter, throughout the process.
Naturally, we have both relied heavily on the support of our respective families and we are
gratefulfortheirunderstandingofourfrequentabsencesfromfamilylifeduringthewriting
production process.Andrew would like to dedicate this book to Michelle, Grace and Liam.
Robyn would like to dedicate this book to Christopher for his unfailing understanding and
ensuring she was fed and hydrated throughout, along with similar sustenance given by her
daughters Victoria Bannon andAnne Sibree and their partners.
ANDREWHEMMING
ROBYNLAYTON
Toowoomba and
Adelaide
November2016