From the uniform evidence law’s formative stages through to its adoption in six jurisdictions, leading barrister and lecturer Stephen Odgers SC has helped pave the way by providing commentary written with unequalled authority.
His latest work, Uniform Evidence Law 13th Edition, provides Australia’s leading guidance on the uniform evidence law for barristers, courts, litigators and students alike.
We recently caught up with Stephen and discussed what he sees as the key moments in the evolution of the legislation and what continues to influence its future development.
Q: You’ve been involved with evidence law longer than the Uniform Evidence Act has been in existence. To provide some historical context, can you give a brief overview of the changes made by the Act, as well as the key amendments to the Act over its lifetime?
A: In criminal law, perhaps the biggest change was Uniform Evidence Act 1995 (NSW), section 38, which allowed prosecutors to call witnesses who they knew were going to give unfavourable evidence and be able to cross-examine them. It gave that area of prosecution a lot more flexibility and enabled a significant cultural change in criminal legal procedure.
The Act has also been amended to give more flexibility around hearsay evidence, avoiding the traditionally more rigid and often strange categorisation of common law – to enable a more sensible approach.
Another interesting shift has been around self-incrimination, where prior to the Act, somebody could come along and say “I am at risk of incriminating myself” and that was the end of it – you wouldn’t be able to get the evidence from that person. However, the Act now offers a certification procedure, where you can come along, claim the privilege and then obtain a certificate – which ensures the evidence is given with the protection of the certificate. This means you get more evidence than you otherwise would’ve obtained, which is a very important change.
Q: Your work in Uniform Evidence Law has been said to influence the development of evidence law, and the Uniform Evidence Act is now 23 years old. Where do you see there being a need for future development, refinement or amendment of the law?
A: New areas of controversy always develop in this area of the law, and decisions of the High Court can create new uncertainties or raise concerns that specific issues need to be re-addressed.
About 15 years ago, I was involved in a High Court decision, which was based on section 102, the credibility rule. When it was handed down I was highly critical of it and wrote a lot of commentary expressing those concerns in my book. A few years later, lo and behold, a Law Reform Commission enquiry was instigated, and they amended the Act to solve that very problem. I think that was obviously a positive step.
There have been many High Court cases since then, some I’ve also been involved in, which have resulted in decisions that I’m not too happy about. Take the case of IMM for instance, which looked at the definition of probative value – a term that recurs in the Act in a number of provisions. I accept some people support it, but I’m one of those who don’t. I think it creates all sorts of uncertainties and potential problems. Moving forward, at the very least I’d like to see a Law Reform Commission to look at that.
It’s also not just High Court decisions that have the potential to create uncertainties – society changes and the rules of evidence need to adapt. For instance, the Royal Commission inquiry into child sexual abuse has made a number of recommendations in relation to Uniform Evidence Law, which is an important issue that needs to be carefully considered moving forward. The Standing Committee of Attorneys-General is already looking at that in more detail, and I think we’ll start to see substantial changes in the law in that area.
Q: The 13th Edition refers to three recent high court cases: Hughes v The Queen , The Queen v Dickman  and The Queen v Dookheea . How have these cases changed our understanding of evidence law?
A: Our readers need to be well informed about the latest High Court decisions, and in relation to Hughes, that resolved a dispute between the NSW courts and the Victorian courts over the proper approach to section 97, which is tendency evidence. It highlights a recurring issue with the Uniform Evidence Law, where we see authority and influence under the common law as it bears on the Evidence Act. However, Hughes pointed us to look more toward focusing more on the wording of the Act, rather than common law decisions.
The case of Dickman raises the issue that we saw in the IMM case – it takes the meaning of probative value and looks at it in the context of identification evidence. Importantly, Dickman highlights one of the issues of uncertainty that arises from IMM, where the High Court held by majority that when you’re assessing the probative value of evidence, you have to assume the evidence is both credible and reliable.
Now, that’s rather difficult to understand in the context of identification evidence, where the very same court, by majority, has acknowledged that identification evidence might have low probative value, because of circumstances that would affect aspects of reliability. So how can you reconcile a situation where you can assume evidence is reliable, yet you can assess its probative value as being low due to circumstances that point to unreliability? And while I agree with the outcome of Dickman, it still highlights the confusion that has resulted from IMM.
Finally looking at Dookheea, it’s a good case in terms of clarifying what judges can and can’t say about proof beyond reasonable doubt when they’re directing a jury. It encourages judges to highlight the difference between the civil standard of proof and the criminal standard of proof. On the other hand, the High Court has rejected any suggestion that the jury have to be told to be certain, or to be sure.
Q: The 13th Edition gives lawyers access to restricted judgments of the NSW Court of Criminal Appeal on compellability of spouses in criminal trials, and the discretion to exclude admissions under section 90 and the discretion to exclude evidence under section 138. Why have you included these?
A: The reason why 13th Edition includes references to restricted judgments is because they’re often very difficult for practitioners and certainly members of the public to access. So the importance of referring to them in the text is so the reader can be better informed, kept up-to-date and be given some valuable insights into the impact of the decision and what the outcome was, without breaching the restrictions on publication.
Q: What do you think are the more interesting trends or new developments in the application of the Act, and of the handling of evidence law more generally?
A: I’ve been involved with Uniform Evidence Law from the beginning. I worked on the Law Reform Commission and was a younger barrister when the Act came in force back in 1995. So I’ve seen the law’s evolution and also the ways in which the courts have adapted to it.
Back when the Act was introduced, lawyers and most judges didn’t want to know about it and pretty much ignored it. Then there was a period where they imported their understanding of the common law into the application of the Act, which caused obvious problems and led to a number of High Court appeals.
After that, we saw a period where there wasn’t the most careful or sophisticated legal analysis of the Act. But I think now we’ve reached a point where we’re seeing a lot of improvement in the sophistication of the analysis of the Act. In fact, even when you read recent lower-level judgments, you can be quite impressed by how thoughtful and careful the judges are in approaching the Act – they understand the context, and the factors that need to be taken into account when applying and interpreting it.
That’s not to say there’s no longer any areas of controversy. I’ve already alluded to some, such as the whole interaction of common law authority and the statutory language, which is a continuing area of difficulty.
Q: With so much information available online, what do you think is the value of a printed textbook such as Uniform Evidence Law?
A: The purpose of a textbook is to bring a whole mass of information together to help explain the fundamental issues at stake, how the law is to be applied in particular circumstances, make it all the more comprehensible and highlight what’s important and what’s not.
Such a body of text can also suggest arguments that might be available, that might otherwise not be apparent by just reading a series of decisions or other sources. So I think textbooks in most areas of the law serve those functions – and I hope mine serves that function for its readers.
About Stephen Odgers SC
Stephen Odgers SC is a prominent NSW barrister in the area of criminal law. He is the author of the Thomson Reuters online and looseleaf subscription, Uniform Evidence Law, and co-editor of the Criminal Law Journal, the Principles of Federal Criminal Law, nine previous editions of the Uniform Evidence Law book. He is also a contributor to The Laws of Australia.
He has been the Chair of the Criminal Law Committee of the New South Wales Bar Association since 2002, member of the National Criminal Law Liaison Committee, Law Council of Australia since 2001, and is an Adjunct Professor at the University of Sydney, Faculty of Law. He has been General Editor of the Criminal Law Journal since 1991 and is a high profile commentator, often cited in the media, offering his opinions on issues relating to crime and justice.