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

Chapter Four- Proof

4.1 STANDARD OF PROOF

The Act does not deal with the burden of proof. This will continue to be dealt with by the common law.

The Act makes no real change to the law regarding standard of proof in civil and criminal cases.

4.2 JUDICIAL NOTICE

The Act makes no real change to existing law, but, as was pointed out by the ALRC, the Act tends to simplify it.[206] The Act allows a judge to take account, without formal proof, of matters of law and matters of common knowledge.

4.3 FACILITATION OF PROOF

Importantly, this Part of the Act facilitates the proof of evidence produced by processes, machines and other devices (see ss 146 and 147) and in this respect should be read in conjunction with s 48. Those provisions were approved by Mr Damian Murphy[207] and by Judges Mullaly and Kelly.[208] Arthur Robinson & Hedderwicks made the following comment: -

"Sections 146 and 147 deal with evidence and business documents produced by processes, machines and other devices, raising presumptions in relation to devices or processes which ordinarily produce a certain outcome. However, it is unclear whether a party is required to prove that the evidence in question is within the class of processing ordinarily carried out by, eg, the computer, or whether the party must lead evidence concerning the particular program which was used and how it works. If the former is the case, it may not provide sufficient protection for the opposing party, but the latter interpretation would mean that extensive evidence is still required. Similar criticisms could also be applied to s. 147".[209]

The Committee appreciates that there may be some doubt as to what is required of a party seeking to adduce evidence through ss 146 and 147. An ordinary reading of the provisions would suggest that they should be construed according to the first alternative suggested to give full effect to the legislative intention to facilitate proof. In the Committee's view, it is desirable to await judicial interpretation of the provisions.

The remaining provisions appear to be uncontroversial. Again, they are approved by Judges Mullaly and Kelly.[210] Reference might be made briefly to Division 2 which deals with Matters of official record and to Division 3 which deals with Matters relating to post and communications. The provisions are broad in their terms and are to be commended. The provisions of Division 3 create certain presumptions in relation to the date of receipt of posted items and other communications.

Ms Kefford, in her submission[211] on behalf of the Residential Tenancies and Small Claims Tribunal draws attention to s 160 and asks whether it will apply to that Tribunal which has its own provision. The Committee is of the view that s 160 would not apply to administrative bodies. Moreover, it will not apply where there is express provision to the contrary.

RECOMMENDATION 27

The Committee recommends the adoption of Part 4.3 ("Facilitation of proof") of the Evidence Act 1995 (Cth). It further recommends that if any problems emerge, they be considered as part of the ongoing process of reforming the uniform legislation.

This Part of the Act deals with corroboration, essentially abolishing this entire area of the law of evidence. Section 164(1) provides that `It is not necessary that evidence on which a party relies be corroborated', and s 164(3) goes on to abolish any remaining requirements that a `corroboration' warning be given. A corroboration warning, as opposed to a general warning about the dangers of acting on a particular class of evidence, directs the jury's attention to the need to look for evidence which corroborates the suspect testimony. It may require the judge to analyse the evidence in the case in order to identify for the jury any potentially corroborating evidence. Corroboration, or warnings about the need for corroboration, was one of the common law's traditional methods of dealing with unreliable classes of evidence; but over the years the common law rules have become excessively technical and inflexible. Doubts have arisen about the efficacy of corroboration warnings as a means of alerting juries to the dangers of unreliable evidence.[212]

For that reason corroboration requirements have been increasingly abolished by statute, so that in Victoria the only class of evidence for which a traditional corroboration warning is still mandatory is the evidence of accomplices. Where new classes of unreliable evidence have been recognised by the courts, the tendency has been to require a warning focusing on the reasons why the suspect evidence may - either generally, or in the particular circumstances of the case - be dangerous on which to act. That tendency is continued by the next Part of the Act, which lists a series of situations in which a warning may be necessary. The Committee endorses this approach, and recommends the adoption of this Part of the Act without amendment.

RECOMMENDATION 28

The Committee recommends the adoption of Part 4.4 ("Corroboration") of the Evidence Act 1995 (Cth).

This Part of the Act imposes a prima facie obligation on the judge to warn the jury about the dangers of acting on certain categories - listed in s 165(1) - of potentially unreliable evidence. In the main, the categories correspond to those categories of evidence already recognised at common law as being potentially unreliable. The listed categories are not exhaustive, however, of the situations when the giving of a warning may be sought; rather, they are merely examples of the more general category of `evidence of a kind that may be unreliable'. This means that the courts will not be prevented, in future cases, from recognising further categories of unreliable evidence.

Section 165(1)(c)

The Committee does have some concern, however, about the third identified category, namely:-

"evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;"[213]

In so far as this provision seems to suggest that children or persons with impaired mental functioning might, because of their age or disability, form unreliable classes of witness, it appears to be at odds with s 23(2A) of the current Evidence Act 1958 (Vic). This provides that:-

"On the trial of a person for an offence, the judge must not warn, or suggest in any way to, the jury that the law regards people with impaired mental functioning or children as an unreliable class of witness".[214]

Section 23(2A) is admittedly qualified by s 23(2B), which provides that:-

"Nothing in sub-section (2A) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice". [215]

No doubt the ALRC intended that a warning would only be given with evidence falling within s 165(1)(c) when the child's age might truly be said to give rise to concerns about reliability. It is precisely in such cases that s 23(2B) of the Evidence Act 1958 (Vic) presumably allows a warning to be given. Nevertheless, in the Committee's view, it might be advisable to retain something of s 23 if the Act is adopted in Victoria. For example, a sub-section along the following lines could be inserted:-

"In giving a warning under this section, the judge must not warn, or suggest in any way to, the jury that the law regards people with impaired mental functioning or children as an unreliable class of witness".

The inclusion of such a sub-section would presumably ensure that any warning given under s 165(1)(c) focused on the reasons why a particular child's evidence might be thought unreliable, rather than on generalisations about why children - or persons with impaired mental functioning - might constitute an unreliable class of witness.

Section 165(3)

The Legal Aid Commission of Victoria also argued that sub-section (3) ought not to be included in s 165. Sub-section (3) provides that the judge need not give a warning if `there are good reasons for not doing so'. The Legal Aid Commission commented that:-

"If evidence may be unreliable, it would be difficult to conceive of reasons good enough to warrant a warning not being given. To simply provide that a warning need not be given if there are good reasons for not doing so without any statutory guidance as to what would be good reasons is a recipe for argument within a trial and an added ground of appeal in the event of conviction where no warning was given". [216]

The aim of sub-section (3) is clearly to avoid a mechanical approach where evidence falling within one of the listed categories is automatically made subject to a warning, even though it may in the circumstances of the case appear to be completely free of the dangers which normally make it dangerous to rely on evidence falling within that category.[217] The Committee agrees that a mechanical approach should be avoided, but shares the concerns of the Legal Aid Commission about the lack of statutory guidance in sub-section (3).

s 61 Crimes Act 1958 (Vic)

The new Act contains nothing equivalent to s 61 of the Crimes Act 1958 (Vic) which deals with jury warnings in sexual offence trials. Sub-section (1) provides that:-

"(a) the judge must not warn, or suggest in any way to, the jury that the law regards complainants in sexual cases as an unreliable class of witness; and

(b) if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge must-

(i) warn the jury that delay in complaining does not necessarily indicate that the allegation is false; and

(ii) inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in complaining about it."[218]

Paragraph (a) abrogates a common law rule requiring the giving of such a warning, a rule which was seen as both demeaning to woman and at odds with the facts. Paragraph (b) is intended to prevent the jury from assuming that a delayed complaint is a false complaint. Sub-section (1) is, like s 23(2A) of the Evidence Act 1958 (Vic) discussed above, subject to a provision allowing the judge to make any comment which `is appropriate in the interests of justice'. There is no reason to think that the need for s 61 is any less compelling than it was when first enacted, so the Committee recommends its retention. Ideally, however, s 61 would be moved to this Part of a new Evidence Act so that all statutory provisions dealing with judicial warnings are contained in the same place.

RECOMMENDATION 2(r)

The Committee recommends that section 61 ("Jury warnings") of the Crimes Act 1958 (Vic) be retained and moved to another Act where appropriate.

4.6.1 Requests to Produce Documents or Call Witnesses

These provisions facilitate the production of documents and other evidence to a party against whom they are to be used. They are a response to the more liberal approach to the admissibility of evidence particularly in the area of hearsay in civil cases. They enable the party against whom the evidence is to be led to examine and test the evidence. The provisions were the subject of favourable comment by Arthur Robinson & Hedderwicks.[219]

4.6.2 Proof of Certain Matters by Affidavits or Written Statements

These provisions enable the matters therein specified to be proved by affidavit or written statement, including, the contents of written documents (see s 48), the hearsay exceptions for "first-hand" hearsay (ss 63, 64 and 65) and the hearsay exception for business records (s 69): see s 170.

Mr Galatas, on behalf of the Legal Aid Commission of Victoria, expressed the view that s 173(1) should not apply to accused persons. This requires any affidavit or statement in respect of the matters referred to in s 170 to be served on each other party a reasonable time before the hearing. Mr Galatas states that there should be no obligation upon an accused to provide anything to the prosecution.[220] This may not necessarily sit well with the Crimes (Criminal Trials) Act 1993 (Vic) and, in any event, s 173 imposes an obligation upon the accused only where he or she proposes to use an affidavit or statement. Mr Galatas' concern may be with the timing of any affidavit or statement by an accused person, given that accused persons often only receive legal assistance shortly prior to trial. The Committee has faith, however, in the ability of judges to ensure that the provisions are not applied unfairly to an accused person.

The Committee is therefore of the view that there is no reason to exclude accused persons from the provisions of s 173(1).

There is no change made to the common law.

4.6.4 Procedures for Proving Other Matters

These provisions deal with certificates of expert evidence and proof of convictions and acquittals.

Last update 19/8/99 ©Parliament of Victoria