Review of the Evidence Act 1958 (Vic) and
Review of the Role and Appointment of Public Notaries

Chapter Two - Adducing Evidence

This Chapter of the Act and the Report deals with the various ways of adducing evidence. The first part deals with adducing evidence from witnesses; the second with adducing documentary evidence; and the third with adducing other forms of evidence.

2.1 WITNESSES

This part of the Act is largely equivalent to Part 2 of the Evidence Act 1958 (Vic) although Part 2 of the Evidence Act 1958 (Vic) also contains some provisions dealt with in other parts of the Commonwealth Act. This part of the Commonwealth Act also contains provisions equivalent to provisions currently found in the Crimes Act 1958 (Vic).

2.1.1 Competence and Compellability of Witnesses

Section 12

This section creates a general rule of both competence and compellability for all persons. It would replace ss 22 and 24 of the Evidence Act 1958 and s 399(2) of the Crimes Act 1958.

Section 13

The basic provisions of this Division of the Act have not been controversial, and the submission of Judges Mullaly and Kelly of the County Court applauded the explicit adoption in s 13 of a test of competence based on whether or not the prospective witness understands the obligation to tell the truth. The move away from a "theological" test of competence for child witnesses was, their Honours commented, in line with "the realities of modern society".[24] Subject to one query - discussed below under Part 4.5, `Warnings' - s 13 would replace s 23 of the Evidence Act 1958.

Section 17

Their Honours did, however, raise a concern that sub-sections (3) and (4) of s 17 of the Act might have the effect that at a joint trial "one accused could not be cross-examined about the activities of a co-accused".[25] In the Committee's view this concern is unfounded. The correct view of the effect of these sub-sections is that they merely maintain the current position under Victorian law as provided by s 399(1) of the Crimes Act 1958 (Vic) namely, that at a joint trial one co-accused cannot compel the other to testify. If the co-accused chooses to testify, however, then there is nothing in the section which would prevent him or her from being cross-examined.

Section 18

Section 18 of the Act confers a discretion on the court to excuse a spouse, de facto spouse, parent or child of a defendant from testifying as a witness for the prosecution in a criminal proceeding. Section 18 is equivalent to s 400 of the Crimes Act 1958 (Vic) and the grounds on which the discretion in s 18 is to be exercised are very similar to the grounds set out in s 400. Both sections recognise that sometimes the aim of ensuring that all relevant evidence is placed before the court must be tempered by the need to avoid the harm which may be done by forcing a person in an intimate or family relationship with the defendant to testify against him or her. By allowing the court to excuse such a person from testifying, s 18 and s 400 implicitly recognise the social importance of personal and family relationships and the consequent need to avoid damaging such relationships wherever possible.

Where s 18 and s 400 differ is that s 18 extends the class of person who may be excused from testifying to de facto spouses. The definition of de facto spouse requires that the putative spouse be of the opposite sex to the defendant, and requires a relationship where the defendant and the putative spouse are living together `on a genuine domestic basis although not married'. Judges Mullaly and Kelly suggested that determining whether or not the defendant and witness were in a de facto relationship "would often involve the court in a lengthy voir dire inquiry".[26] Their Honours added, however, that as "de facto relationships are now a part of the social fabric"[27] the question of whether or not to extend the protection provided by s 18 to de facto spouses is essentially a matter of policy.

The Committee agrees that the scope of s 18 is a matter of policy. Accordingly, the Committee discussed limiting the discretion in s 18 to legally married spouses as under s 400 of the Crimes Act 1958 (Vic) as well as extending it to include all de facto relationships. A majority of the members of the Committee eventually concluded, however, that in the interests of uniformity s 18 should be adopted in its present form,[28] but that the broader policy issues should be considered as part of the ongoing process of reforming the uniform legislation.

RECOMMENDATION 6

The Committee recommends that section 18 ("Compellability of spouses and others in criminal proceedings generally") of the Evidence Act 1995 (Cth) be adopted in its present form. It further recommends that the broader policy issues outlined in the Report be considered as part of the ongoing process of reforming the uniform legislation.

Section 19

Section 19 of the Act provides that s 18 does not apply when the defendant is being prosecuted for some particular crimes, mainly crimes of domestic violence and crimes against children. The justification for s 19 is twofold; first, the fact that in such cases the only persons able to provide evidence of the defendant's acts may be the very persons who could otherwise have been excused from testifying against him or her. Without their evidence, in other words, there might be no prosecution case. The second justification for s 19 is that where such crimes occur within a family, the family relationship is inherently less worthy of protection. Whether or not a Victorian equivalent to s 19 should be adopted, however, and if so, what crimes it should cover, is essentially a question of policy. In its submission, the Legal Aid Commission of Victoria opposed the adoption of s 19, arguing that the general rationale against compelling the family members of a defendant to testify against him or her should prevail.[29]

The Committee believes, however, that the policy justifications for s 19 are persuasive. In the Committee's view, the protection of children and the prosecution of crimes against children are paramount considerations. Accordingly, the Committee recommends that Victoria should adopt a provision such as s 19. As the crimes referred to in s 19 are, however, crimes against State or Territory legislation, a new s 19 will need to be drafted for Victoria. The Committee has identified the following offences under Victorian law as broadly equivalent to those under ACT and New South Wales law specified in the Commonwealth and New South Wales Acts respectively:-

• offences under Part I Division 1 ("Offences against the Person") of the Crimes Act 1958, being an offence against a person under the age of 18;
• offences under Part I Division 1 ("Offences against the Person") of the Crimes Act 1958, being a domestic violence offence;
• offences under Part I Division 10 ("Conspiracy"), Division 11 ("Incitement") or Division 12 ("Attempt") of the Crimes Act 1958, where the conspiracy, incitement or attempt relates to an offence falling within either of the above categories;
• offences under Part III Division 9 ("Employment of Children") of the Community Services Act 1970;
• sections 261 ("Offence to fail to protect child from harm") and 262 ("Offence to leave child unattended") of the Children and Young Persons Act 1989.

The phrase `domestic violence offence' will clearly require definition. The Committee notes that the following definition in the New South Wales Crimes Act 1900 could be used as a model for any Victorian legislation:-

"Domestic violence offence' means a personal violence offence committed against:

(a) a person who is or has been married to the person who commits the offence; or
(b) a person who is living with or has lived with the person who commits the offence as his wife or her husband, as the case may be, on a bona fide domestic basis although not married to him or her, as the case may be; or
(c) a person who is living with or has lived ordinarily in the same household as the person who commits the offence (otherwise than merely as a tenant or boarder); or
(d) a person who is or has been a relative (within the meaning of subsection (6)) of the person who commits the offence; or
(e) a person who has or had an intimate personal relationship with the person who commits the offence." [30]

RECOMMENDATION 7

The Committee recommends section 19 ("Compellability of spouses and others in certain criminal proceedings") of the Evidence Act 1995 (Cth) be adopted but redrafted to specifically include the offences outlined in the Report, namely;-

• offences under Part 1, Division 1 ("Offences against the Person") of the Crimes Act 1958 (Vic), being an offence against a person under the age of 18;
• offences under Part 1, Division 1 ("Offences against the Person") of the Crimes Act 1985 (Vic), being a domestic violence offence;
• offences under Part 1, Division 10 ("Conspiracy"), Division 11 ("Incitement") or Division 12 ("Attempt") of the Crimes Act 1958 (Vic), where the conspiracy, incitement or attempt relates to an offence falling within either of the above categories;
• offences under Part 111 Division 9 ("Employment of Children") of the Community Services Act 1970 (Vic);
• sections 261 ("Offence to fail to protect child from harm") and 262 ("Offence to leave child unattended") of the Children and Young Persons Act 1989 (Vic).

Section 20

The Committee received a number of submissions relating to s 20 of the Act, reflecting a wide range of views. Section 20 allows the judge to make certain comments about an accused person's failure to testify. Currently, Victorian law in the form of s 399(3) of the Crimes Act 1958 provides that `the failure of any person charged with an offence to give sworn evidence shall not be made the subject of comment to the jury by either counsel for the prosecution, or by the presiding judge'. Putting aside any questions of fairness to the accused, s 399(3) creates a problem for the trial judge in cases where the jury asks why the accused did not testify or what significance should be attached to this failure. Any explanation, no matter how neutral, will breach the prohibition and may result in a successful appeal.[31]

This means that judges must be extremely circumspect when asked about the accused's failure to testify. In his submission, for example, the Honourable Justice T.H. Smith of the Supreme Court said that a response which he and another Supreme Court judge had used was to say to the jury "This case is to be decided by you on the evidence before you and you should not speculate about what evidence might have been given".[32]

As the Honourable Justice T.H. Smith commented, such a response effectively denies "the jury appropriate assistance".[33] The effect of the ban on judicial comment is therefore, to create "situations in which a legitimate jury question cannot be answered and if answered will probably result in a successful appeal".[34]

Section 20 overcomes this problem by removing the prohibition on judicial comment. The key part of the section is sub-section (2) which provides that:-

"The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned".[35]

Apart from ruling out comments which suggest that the defendant failed to testify because he or she was guilty, s 20 gives no guidance as to the nature of the comments which might be made; nor does the Act itself cover the drawing of inferences. This means that any judicial comment under s 20 would probably be guided by the High Court's decision in Weissensteiner v R.[36] In that case a majority of the High Court held that an accused person's failure to testify could not itself amount to evidence of guilt; but that it could in certain circumstances allow the jury to more readily draw an inference of guilt already open, by rendering unreasonable any hypotheses consistent with innocence.[37] Moreover, the accused's failure to testify could be used by the jury in this way even in jurisdictions such as Victoria where judicial comment was prohibited (although the prohibition meant that the jury could not be told this).

The effect of Weissensteiner, then, is that an accused person's failure to testify can be used against them, albeit in a restricted fashion; and the effect of s 20 is that the jury can be told this. The Legal Aid Commission argued, however, that because the law gives the accused a choice about whether or not to testify the exercise of that choice ought not to be used against him or her.[38] The Honourable Justice T.H. Smith also emphasised "the conundrum of giving persons a right but penalising them if they exercise it".[39] He suggested that the recent abolition of the accused's right to give unsworn evidence means that:-

"accused persons who are innocent, face a very difficult choice - particularly, if they are, like many accused, inarticulate, excessively nervous or slow witted or have prior convictions. They may be forced to stand mute or run the risk of wrongly convicting themselves. The reality is that there may be good reasons why an accused person does not give evidence which reasons are consistent with innocence and not with guilt and which do not bear any relationship to the strength of the Crown case."[40]

He also pointed out that the ALRC proposals on which the Act is based had been made "in the context that a modified right to give unsworn evidence would remain".[41] With the abolition of this right, the Honourable Justice T.H. Smith argued that to "permit the adverse use of the accused's silence in this situation will lead to wrongful convictions", and suggested that there was "much now to be said for the American position ... where the Supreme Court has apparently laid it down that an accused person is entitled to the direction that the accused is not required to testify and the fact that he or she chose not to do so should not prejudice him in any way".[42] The Legal Aid Commission, on the other hand, reaffirmed its policy that the accused's right to give unsworn evidence should be restored.[43] If s 20 were to be adopted, however, then the Honourable Justice T.H. Smith submitted that any comment by a co-defendant ought to be subject to the same limitations as those which apply to the judge.[44] Judges Mullaly and Kelly, on the other hand, thought that the limitations should be removed altogether, so that it could be suggested that the accused failed to testify because he or she was, or believed him or herself to be, guilty of the crime charged. Their Honours also suggested that the prosecutor ought to be given a right to comment lest it create "the impression that the judge was doing something the prosecutor had forgotten to do".[45]

The Committee spent a considerable amount of time discussing the merits of the various views set out above. The Committee noted that the right to give unsworn evidence is a matter of policy which has been recently addressed by the Parliament.[46] The Committee therefore felt that it was inappropriate to consider its reintroduction. In the end, the Committee concluded that s 20 is a significant improvement on the current Victorian position. Accordingly, the Committee recommends that s 20 be adopted in its present form, and notes that if any problems in its operation do emerge, these can be dealt with as part of the ongoing review of the legislation.

RECOMMENDATION 8

The Committee recommends that section 20 ("Comment on failure to give evidence") of the Evidence Act 1995 (Cth) be adopted. It further recommends that if any problems emerge, they be considered as part of the ongoing process of reforming the uniform legislation.

2.1.2 Oaths and Affirmations

Section 24

This Division did not attract any adverse comment, although Judges Mullaly and Kelly were concerned that s 24(1) of the Act - which states that `it is not necessary for a religious text to be used in taking an oath' - had the potential to cause confusion. Although their Honours agreed that s 24(1) is actually consistent with the current position in Victoria, they emphasised that the form used for an oath must still contain a "solemn appeal to God or a revered or dreaded person or object in witness that a statement is true or a promise will be kept"[47] or will not amount to an oath. The Committee does not believe, however, that s 24 gives rise to any real risk of confusion.

Section 25

Section 25 of the Evidence Act 1995 (Cth) preserves the right which a defendant may have under the law of a state or territory to make an unsworn statement. That right has now been abolished in all Australian jurisdictions except Norfolk Island. Section 25 is, therefore, of no practical effect. Section 25 should be omitted from any Victorian Act.

RECOMMENDATION 9

The Committee recommends that section 25 ("Rights to make unsworn statements unaffected") of the Evidence Act 1995 (Cth) be omitted from a Victorian version of the Act.

2.1.3 General Rules About Giving Evidence

Section 30

In general this Division was uncontroversial. Judges Mullaly and Kelly were concerned, however, by the fact that s 30 confers a prima facie right on witnesses to give their evidence through an interpreter.[48] The section goes on to provide, however, that the witness cannot give their evidence through an interpreter if `the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply' to questions. In essence, their Honours suggested that s 30 should be expressed the other way around; that is, as creating a general rule that evidence must be given in English, subject to a judicial discretion to allow the witness to give their evidence in whole or in part through an interpreter. In other words, their Honours suggested that rather than a witness being entitled to testify through an interpreter unless the court finds that they are able to testify in English, the witness should be required to testify in English, unless the court finds that they are unable to do so. Section 30 was, however, justified by the ALRC on the following basis:-

"There is evidence that, under existing law where a witness must seek the permission of the court to be allowed an interpreter, there is a reluctance to allow interpreters and that this adversely affects the fact-finding process and is unfair to the parties and witnesses."[49]

In the Committee's view, both approaches have their merits and their drawbacks. The Committee is, therefore, prepared to be guided by the interests of uniformity in recommending that s 30 should be adopted in its current form.

RECOMMENDATION 10

The Committee recommends that section 30 ("Interpreters") of the Evidence Act 1995 (Cth) be adopted.

Section 31

Judges Mullaly and Kelly also raised concerns about s 31, which deals with deaf and mute witnesses.[50] Their Honours' concerns related in particular to sub-section (3) of s 31. Sub-section (3) gives the court power to give directions concerning the way in which a witness who cannot hear adequately is questioned, and the means by which a witness who cannot speak adequately gives their evidence.

Their Honours were concerned that sub-section (3) does not give the court the power to make directions concerning matters such as "the number of interpreters necessary, the ability to interrupt proceedings, restricting access to the courtroom to specific entrances or restricting access to parts of the courtroom so that lines of sight will be clear, prohibiting any signing by any member of the public".[51] All such matters should, however, fall within the general power, referred to by Judges Mullaly and Kelly, of a judge to control the conduct of proceedings in his or her courtroom.

This general power is confirmed by that s 11(1) of the Act provides that `the power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment'. Their Honours appear to have been concerned that by specifically providing that the court may give directions with respect to two matters, s 31(3) limits - `by necessary intendment' - the general power of the court to give directions about the other matters identified by their Honours. The Committee is satisfied, however, that s 31(3) does not have this effect.

Sections 32-34

These sections replace the current common law about the means by which a witness may attempt to `refresh' his or her memory, in or out of court, and the consequences of him or her doing so. They must be read in conjunction with s 122(6), which provides that client legal privilege is lost when a document is either used in an attempt to revive memory, in or out of court, or with the procedure set out in s 33. In general, the new provisions introduce a greater degree of flexibility into this area of the law. Judges Mullaly and Kelly were, however, concerned that the replacement in s 32(2)(b)(i), of the common law's strict test of contemporaneity with a test of freshness of memory might lead to lengthy voir dires on the issue of human memory.[52] The Committee is convinced, however, that such cases would be rare and that the advantages of flexibility outweigh the disadvantages.

Section 33 permits a police officer to give their evidence in chief by reading or being led through a statement previously made by the police officer. This is a sensible provision which recognises the fact that police officers are involved in so many cases that they can not realistically be expected to remember the details of any of them. According to Judges Mullaly and Kelly, such a practice is already possible - and has been tried - in Victoria because of the powers conferred on judges by s 5 of the Crimes (Criminal Trials) Act 1993 (Vic).[53]

Their Honours did, however, raise some concerns about s 34. Section 34 deals with cases where the witness has attempted to revive his or her memory out of court. It confers a discretion on the judge to order the production of anything used by the witness to revive memory, and allows the judge to refuse to admit the evidence if those orders have not been the subject of compliance. Their Honours' concern was that the combination of s 34 and s 122(6) "could result in a situation wherein an accused's statement to his solicitors is called for by the prosecutor; non-production could result in the accused's evidence being ruled inadmissible".[54] The Committee is, however, of the view that the good sense of our judges is adequate safeguard against any such situation arising.

Retention of current Victorian provisions

Another submission pointed out that the Act contains nothing equivalent to ss 37B and 37C of the Evidence Act 1958 (Vic).[55] Section 37B, in combination with the Evidence (Recorded Evidence) Regulations 1994 (Vic), allows the use of recorded evidence in certain proceedings, in particular child sexual abuse cases. Section 37C permits the courts to order a variety of `alternative arrangements' in sexual offence cases. The Act also contains nothing equivalent to s 37D of the Evidence Act 1958, which permits the use of video-link evidence in proceedings relating to a charge under s 49A(1) of the Crimes Act 1958. The Committee recommends the retention of all of these provisions, preferably by moving them to the Crimes Act 1958.

RECOMMENDATION 2(f)

The Committee recommends that section 37B ("Use of recorded evidence-in-chief in certain proceedings" ) of the Evidence Act 1958 (Vic) be retained and moved to another Act where appropriate.

RECOMMENDATION 2(g)

The Committee recommends that section 37C ("Alternative arrangements for giving evidence in certain proceedings") of the Evidence Act 1958 (Vic) be retained and moved to another Act where appropriate.

RECOMMENDATION 2(h)

The Committee recommends that section 37D ("Video link evidence from overseas in certain proceedings") of the Evidence Act 1958 (Vic) be retained and moved to another Act where appropriate.

2.1.4 Examination in Chief and Re-Examination

Section 38

The only section in this Division which attracted comment was s 38 which deals with `unfavourable witnesses'. Judges Mullaly and Kelly pointed out that at common law a party cannot cross-examine a witness who is merely unfavourable unless that witness is declared hostile whereas under s 38 a merely unfavourable witness can be cross-examined.[56] This change was justified by the ALRC on the basis that the present law prevents the evidence of an unfavourable witness from being tested, adversely affecting the fact-finding process.[57] Accordingly, the Committee supports this reform.

Their Honours were also concerned that "by omitting any reference to obtaining leave to cross-examine during re-examination it may be said that such a course is not open".[58] Permitting cross-examination during re-examination might be desirable in cases where the witness gives unfavourable evidence during cross-examination by the opponent of the party who called the witness. A close examination of the section suggests, however, that their Honours fear is probably unfounded. Section 38(1) provides that:-

"A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:-
(a) evidence given by the witness that is unfavourable to the party"[59]

There appears to be no reason why the reference in s 38(1)(a) to `evidence given by the witness that is unfavourable to the party' would not include evidence given during cross-examination. Although s 38(4) does state that `Questioning under this section is to take place before the other parties cross-examine the witness', there is specific provision for the court to direct otherwise. The section therefore appears to permit the court to grant leave to a party to cross-examine its witness during re-examination, as well as during examination in chief.[60]

Finally, their Honours raised concerns about the possible ambiguity of s 38(3), which provides that:-

"The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility."[61]

Their Honours argued that this sub-section was open to two possible interpretations: first, "that the cross-examination is limited to credit"; or secondly, "that cross-examination on credit is permissible only by leave of the court". Their Honours added that "Neither view is satisfactory".[62] In the Committee's view, the second of the interpretations suggested by their Honours is clearly the correct one; moreover, the Committee considers it appropriate to place such a limitation on cross-examination when the cross-examiner is the party who called the witness.

2.1.5 Cross-Examination

Section 41

Again, this Division was in general uncontroversial. Judges Mullaly and Kelly specifically endorsed the drafting of s 41, but queried whether: -

"it would also be appropriate to consider whether it ought to be amplified to meet legitimate complaints about cross-examination (other than that already limited pursuant to s 37A of the Evidence Act 1958 (Vic)) in trials for sexual offences."[63]

Unfortunately, consideration of this question falls outside the Committee's terms of reference. The Committee notes, however, that the New South Wales equivalent to s 37A, being s 409B of the Crimes Act 1900 (NSW) - has been retained, despite the adoption of the Evidence Act 1958 (Cth). The Committee recommends that s 37A of the current Evidence Act 1958 (Vic) should likewise be retained, preferably by moving it to the Crimes Act 1958 (Vic). The Committee does note, however, that there may be some shortcomings in the operation of s 37A. In particular, Judge Mullaly of the County Court argued in his oral submission to the Committee that s 37A has not been providing the protection to complainants in rape cases which it was intended that it should.[64] The Committee notes these concerns, and recommends that the Attorney-General consider reforming s 37A in order to ensure that it does provide effective protection to complainants in sexual offence trials.

RECOMMENDATION 2(e)

The Committee recommends that section 37A ("Special rules of evidence in relation to certain offences which relate to rape") of the Evidence Act 1958 (Vic) be retained and moved to another Act where appropriate.

Section 46

The Committee expresses some concern about s 46 of the Act which addresses the rule in Browne v Dunn.[65] The rule in Browne v Dunn is a rule of procedural fairness, essentially requiring that a cross-examiner put to a witness those aspects of his or her case that relate to the witness or about which the witness would be able to give evidence. It seems clear that s 46 is not intended to entirely supplant the rule in Browne v Dunn, but it is unclear whether it is merely intended to create an additional sanction for breach of the rule (the power to grant leave to a party to split its case by recalling a witness for further examination), or whether it is also intended to abolish the existing possible sanctions for breach of the rule.

As far as the creation of a new sanction is concerned, the Committee notes the comments of Judges Mullaly and Kelly to the effect that s 46 effectively abolishes the rule in Browne v Dunn and "creates a dangerous situation by providing for the recall of witnesses if a party takes advantage of the abolition of the rule. This would have a potential to increase the time taken by trials and increase costs. It does not address the problems (e.g. of convenience to witnesses) involved in recalling witnesses".[66]

It seems, however, that the courts do already have the power to allow a party to recall a witness in respect of whom the rule was breached.[67] It may be that this is a power rarely exercised in practice, but it would nevertheless be more accurate to describe the effect of s 46 as affirming the continuation of an existing discretion than as creating an entirely new one. In exercising the discretion in s 46 the court must also take into account the factors set out in s 192(2), which include the following:-

"(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and
(b) the extent to which to do so would be unfair to a party or to a witness; and;
(c) the importance of the evidence in relation to which the leave, permission or direction is sought".[68]

If these factors are taken into consideration, then it seems unlikely that the concerns expressed by their Honours will eventuate. This view is subject, however, to the continued existence of other possible sanctions for breach of the rule. If the exercise of the discretion in s 46 is the only possible sanction for breach of the rule in Browne v Dunn then it is quite possible that their Honours' fears might be realised. A question therefore arises as to the effect which s 46 has on the continued existence of the other possible sanctions for breach of the rule.

First, it seems clear that the Act does abolish the power of the judge to exclude evidence which was not put to a witness in conformity with the rule in Browne v Dunn. This is because s 56(1) of the Act provides that `Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding'. Nowhere in the Act does it provide that breach of the rule in Browne v Dunn is the grounds for exclusion of evidence.[69] The ALRC made it clear it did not regard the power to disallow evidence as an appropriate sanction for breach of the rule in Browne v Dunn.[70] Upon reflection, the Committee is inclined to agree with the ALRC. Depriving the court of relevant evidence is an undesirable compromise of the truth-seeking role of the trial. In any case, the power to exclude evidence is an extreme sanction, rarely applied by the courts.

But what of the other existing sanctions for breach of the rule? This is where the drafting of s 46 is arguably defective. It was clearly intended by the ALRC that, subject to the two changes described above, the rule would continue in its present form. In its Report the ALRC stated that "As far as consequences are concerned, it is not possible to address issues such as the comments that may be made on the inferences that may be drawn from a failure to comply with the rule. The law on this aspect is not affected".[71] Textual support for this view can be found in s 11 of the Act, which provides that `the power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides expressly or by necessary intendment'. Only if s 46 is seen as a complete replacement of, rather than addition to, the rule in Browne v Dunn could s 46 be said to limit, `by necessary intendment', the existing powers of the court in respect of breaches of the rule in Browne v Dunn.

As long as s 46 is interpreted in light of the ALRC reports, any concerns that s 46 limits the court's discretion in imposing sanctions for breach of the rule in Browne v Dunn to ordering the recall of the witness should prove groundless. The Committee therefore recommends that s 46 be enacted in its present form.

RECOMMENDATION 11

The Committee recommends that section 46 ("Leave to recall witnesses") of the Evidence Act 1995 (Cth) be adopted.

2.2 DOCUMENTS

This part deals with the proof of the contents of documents. It simplifies considerably the common law and statutory rules regarding proof of documents. The existing statutory provisions are to be found in Part 3 of the Evidence Act 1958 (Vic). There are some sixty-six sections in all. In fairness, they deal not just with the proof of the contents of documents but with questions of admissibility of statements contained in documents and the effect of documentary evidence; for example, by creating statutory exceptions to the hearsay rule (see 3.23 below). Indeed, one of the advantages of the Act, it seems to the Committee, is that it separates the question of the proof of the contents of documents from the question of the admissibility of statements in the document.

The legislative provisions have been enacted over time and in a somewhat piecemeal fashion to accommodate loopholes and changes in technology.[72] The Act will not provide an exhaustive statement in respect of the proof of the contents of documents. If there is provision in some other Act for the proof of the contents of a document, that provision will continue to apply provided that it is preserved by s 4. Section 4 defines the application of the Act.

In his oral submission to the Committee, Judge Mullaly commented on the need for flexibility in these provisions, in order to ensure that Parliament need not be constantly amending the Act to take account of new technologies.[73] In the Committee's view this is actually one of the great strengths of these provisions, particularly in comparison to current Victorian legislation.

Section 47

Section 47 is a definition section and refers to a `document in question'. The word `document' is defined in the Act in very broad terms:-

"document means any record of information, and includes:-

(a) anything on which there is writing; or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified for people to interpret them; or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph".[74]

The definition was referred to by the Victorian Bar in its submission with approval.[75] It is as broad, if not considerably broader, than the definition of "document" in s 3(1) of the Evidence Act 1958 (Vic). It is also highly flexible, and so ought to avoid the problem of the Act requiring constant amendment in order to take account of new data storage and retrieval technology. For example, a computer system which records information would be a document for the purposes of the Act. So would an optical disc, as described by Phillip Reynolds, namely a computer storage device which "uses the power and precision of a laser to etch and then read tiny marks on shimmering platters".[76]

Section 48

A party wishing to put a document in evidence may do so by tendering the (original) document or by using any of the methods set out in paragraphs (b)-(f) of s 48(1). Most importantly, paragraph (b) allows a party to tender a document which is, or purports to be, a copy of the original document and which has been produced, or purports to have been reproduced by a device that reproduces the contents of a document.

In its report, the ALRC said:-

"The accuracy of modern reproduction techniques and the convenience of tendering copies produced by them warrant general recognition. The approach of the US Federal Rules (Rule 1001, 1003) should be adopted, so that a duplicate would be admissible in evidence to prove the contents of the original document, whether the original document is in existence or not".[77]

Paragraph (b) reflects this concern. Paragraph (c) and (d) reflect the fact that modern means of storing information require the tender of secondary evidence of the information stored.[78] For, example, paragraph (d) will allow a computer printout to be tendered in evidence, subject to authentication. It would also permit secondary evidence of information stored on an optical disc to be tendered, again, subject to authentication.

In its submission to the Committee, Arthur Robinson & Hedderwicks refer to the existing Victorian provisions regarding the tender of reproduced documents as follows:-

"Confusion surrounds the provisions of the Act (the Evidence Act 1958 (Vic)) which deal with reproductions and computer technology. The provisions regarding admissibility of documents have been described as "convoluted and complex". In addition, the lack of uniformity between the various jurisdictions has added to the complexity of the law in this area".[79]

Arthur Robinson & Hedderwicks go on to criticise the existing Victorian provisions and conclude that the Commonwealth provisions form "a sound basis for the proposed Victorian legislation".[80] They do, however, refer to the "real potential for fraud".[81] with regard to new technology, a matter referred to by Mr Reynolds in his article and repeated in his letter of 27 February, 1996[82] a particular concern in criminal proceedings. The image retrieved from an optical disc may be electronically modified. They point out, however, that s 137 of the Act allows the court in criminal proceedings to exclude evidence.[83] Reference can also be made to the general discretion to exclude or limit the use of evidence found in ss 135 and 136 of the Act.

It should be noted, moreover, that it does not follow from the fact that evidence can be tendered under s 48 that it will be admitted. The admissibility of evidence is not dealt with under s 48. It depends on the application of Chapter 3 of the Act and, in particular, ss 55, 57, 59, 69. The fact that the admissibility of the evidence contained in the document is to be separately determined appears to the Committee to provide some safeguard to the admission of documentary evidence where there exists a significant risk that it has been fraudulently reproduced.

The Insurance Council of Australia in its submission applauded the simplicity of s 48.[84] The Bar Council[85] also gave its support to s 48 as did the Victoria Police.[86]

Section 51

Consistently with the more liberal provisions for the tendering of secondary evidence of documents under s 48, the Act abolishes the vestiges of the `best evidence' rule. That common law rule provided, in effect, that only original documents might be tendered in evidence. As the Insurance Council of Australia points out in its submission, the `rule' has largely been ignored by judges in any event or common law exceptions, such as that for documents lost or destroyed, have been given broad effect.[87] Moreover, statutory exceptions in the Evidence Act 1958 (Vic) have made significant inroads.

The abolition of the rule is, in the Committee's view, a timely one.

RECOMMENDATION 5

The Committee recommends that those sections of the Evidence Act 1995 (Cth) which relate to matters of proof and admissibility of reproduced documents be adopted as a model for uniform legislation in Victoria.

2.3 OTHER EVIDENCE

This Part proved largely uncontroversial.

Section 53

Judges Mullaly and Kelly did, however, express some concern about s 53. Section 53 sets out the rules which govern the ordering of demonstrations, experiments, and inspections. Section 53(3) sets out a non-exhaustive list of considerations which the judge is to take into account when deciding whether or not to order that a demonstration, experiment or inspection be held. Their Honours concern was that the language used in s 53(3) might make a judge "feel constrained to conduct a "view" in order to determine whether a view should be held".[88] In the Committee's view this fear is unfounded.

Their Honours second concern related to s 53(4), which forbids the court, including the jury if there is one, from conducting experiments in the course of its deliberations. Their Honours were concerned[89] that s 53(4) would forbid the jury from conducting simple experiments of the kind permitted in Kozul v R.[90] In that case the issue was whether a gun might have accidentally discharged as a result of a blow to the hand of the person holding it. The trial judge directed the jury that "You will see that if it is cocked back there it is a matter for you, for yourselves in the jury room, the expert has told you nothing about it, apparently did not do any tests. But you may find in the jury room for yourself that when it is cocked, if you try it for yourselves, that a blow on your hand may cause this to go off".[91] In short, he invited the jury to experiment with the gun.

A majority of the High Court actually declared that this direction was incorrect. Gibbs CJ (with whom Mason J agreed) said that "In so far as the learned trial judge suggested that the jury should conduct an experiment designed in part to discover the extent to which a blow to the hand might cause a finger to move, whether by reflex action or in spontaneous response to emotion, he fell into error. In the circumstances of this case an experiment conducted by the jury for such a purpose would have gone beyond an examination and evaluation of the evidence provided by the revolver, and would have had the purpose of gathering additional evidence".[92] To similar effect, Wilson J commented that "to encourage the jury to experiment with the weapon with a view to seeing if it would accidentally discharge when a blow was delivered to the hand holding it was to invite it to create new material".[93]

Kozul is not, therefore, authority for the proposition that the jury can conduct simple experiments with the exhibits. Indeed the case is cited in Cross on Evidence[94], for the contrary proposition, that it is "impermissible for [the jury] to conduct experiments going beyond mere examination and evaluation leading to the creation of new evidentiary material". Kozul does affirm that the jury may handle the exhibits, and may attempt to evaluate the evidence in light of their own experience of the exhibits; but it does no more. So in Kozul's case itself it would have been perfectly permissible, according to Gibbs CJ, for the jury "to determine how sensitive the trigger was to pressure, and proper for the jury to examine the revolver, and to feel for themselves how much pressure was required to discharge it".[95]

Section 53(4) should, therefore, cause no change to the existing law. It could only forbid what Kozul said was permitted if the word `experiment' in s 53(4) was given an extremely broad interpretation, broad enough to include the mere handling of an exhibit. `Experiment' is not defined in the Act, but is defined in the Concise Oxford Dictionary as a `procedure adopted on chance of its succeeding, for testing hypothesis'.[96] Applying this definition to the facts of Kozul's case, it seems clear that handling the gun in order to determine how sensitive the trigger was would not amount to an experiment because no hypothesis is being tested, whereas hitting one's hand while holding the gun in order to see whether this could lead to accidental discharge does amount to the testing of a hypothesis and would therefore amount to an experiment. This suggests that s 53(4) will produce exactly the same results as the test set out in Kozul. It is also worth noting that s 53(5) of the Act specifically provides that the right of the court, including the jury, to `inspect' exhibits is not affected by s 53.

The example suggested by their Honours[97] was of a case where the jury might wish to see how difficult it would be for a one-armed person to load a rifle. In the Committee's view, this procedure does not involve the testing of an hypothesis, and is more analogous to that which the court approved in Kozul, namely handling the gun to see how much pressure was required to pull the trigger. The Committee therefore suggests that the `experiment' described by their Honours would continue to be permissible. It is true that drawing a line between what is forbidden by s 53(4) and what is not may prove difficult at times, but no more difficult than interpreting the line drawn in Kozul. The Committee therefore recommends the adoption of s 53 in its present form.

RECOMMENDATION 12

The Committee recommends that section 53 ("Views") of the Evidence Act 1995 (Cth) be adopted.

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