The 50 Shades of Grey of Australian Evidence Law

Legal practitioners, academics and students would agree that the law of evidence in Australia is often frustrated by a mixture of statute, common law, and rules of court.

With the passage of the Evidence Act 1995 (Cth), there were hopes for the harmonisation of the laws of evidence and the implementation of uniform legislation throughout Australia. The Australian Law Reform Commission has acknowledged that although complete harmonisation has not yet occurred, “there are promising signs that non-uniform Evidence Act jurisdictions are moving towards entry into the uniform Evidence Act regime” (Uniform Evidence Law, Report No 102 (ALRC, 2006) pp 49–50). Indeed, recently we have seen the Northern Territory, Tasmania and Victoria join the Australian Capital Territory and New South Wales in adopting the Uniform Evidence Acts in those jurisdictions.

The impact of these legislative reforms on the admissibility of documentary evidence is explored in The Laws of Australia Subtitle 16.5 “Documentary Evidence”[1] by author Dr Roger Brown, a Magistrate of the Local Court of New South Wales.

The analysis of business records legislation is particularly insightful, delving into the debates which exist among commentators in this area. There is contention with regard to the proper interpretation of s 183 of the Uniform Evidence Acts[/pullquote], which provides the statutory power to draw inferences from documents. On one view and following the decision in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463, the power under s 183 is not available until the court is otherwise satisfied that the document to which a question has arisen is an admissible business record. The Court at [20] stated that s 183 merely enables reasonable inferences to be drawn from such parts of a document as are admissible or to which no objection has been taken. However, Professor Stephen Odgers, author of Uniform Evidence Law (10th Edition, Lawbook Co., 2012)[2] argues strongly to the contrary of this decision that the terms of s 183 do not limit the drawing of reasonable inferences to parts of a document that are admissible (see pp 996–997). The jury is still out on whether such a limitation is justified by the Uniform Evidence Acts.

Subtitle 16.5 “Documentary Evidence” also explores the progression of evidentiary principles in cases including Nolan v Nolan [2003] VSC 121 and Lithgow City Council v Jackson [2011] HCA 36. Readers may notice a new section discussing the particularly privileged position of foreign business records under Australian evidence laws as a result of amendments to the Foreign Evidence Act 1994 (Cth).

 

References

  1. Documentary Evidence – The Laws of Australia, 2nd Edition
  2. Uniform Evidence Law 10th Ed

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