Chapter 1: Introduction

The major recommendation of the report is that uniformity should be sought in the evidence laws applied by all tribunals sitting in this State. To this end, the Commission has set aside many of the reservations it had with the ALRC draft bill in order to achieve a uniform system of law. We acknowledge with the ALRC that the only true way to test the force of its recommendations is to implement the bill and to reassess it’s operation after an introductory period. Amendments may then need to be made, hopefully once again with uniformity in mind.

Chapter 2: Draft Evidence Bill

Part 1: Preliminary, clauses 1-10

Adopted with minor amendments to accommodate the change of jurisdiction.

Part 2: Application of Act, clauses 11-17

Adopted with minor amendments to accommodate the change of jurisdiction.

Part 3: Witnesses, clauses 18-49

Division 1: Competence and compellability of witnesses, clauses 18- 25 .

Adoption recommended with some amendments to clause 23, to accord with amendments recommended to clauses 26-29 below.

Division 2: Sworn and unsworn evidence, clauses 26-29.

Amendments recommended to accord with recommendations of this Commission in Report on Unsworn Statements of Accused Persons LRC 45, 1985.

Division 3: Manner of giving evidence, clauses 30-49.

Adoption recommended with minor amendments.

Part 4: Admission of evidence: Relevance Rule, clauses 50-53

Adopted in full.

Part 5. Admission and Use of Evidence: Exclusionary Rules, clauses 54-119

Adopted, although some reservations expressed of identification evidence, clauses 103, 104.

Part 6: Other Aspects of Proof, clauses 120-140 Adopted in full.

Part 7: Miscellaneous, clauses 141-151 Adopted in full.

Chapter 3: Matters beyond ALRC Draft Evidence Bill on which no recommendation made-ACT Evidence ordinance 1971.

Matters identified by the ALRC as beyond its terms of reference and therefore not reported on in ALRC 38, but provided for in the federal sphere by the ACT Ordinance. Implementation of the ALRC Draft Bill leave gaps in the law of NSW.

ACT Ordinance:

s83 Prohibition of publication of evidence.

s85 Publication of disallowed questions

s88 Impounding documents.

Chapter 4: Developments in Case Law since ALRC Report 38

• Loss of client legal privilege- Hooker Corporation Ltd v The Darling Harbour Authority (1987) 9 NSWLR 538.
• Judges’ power to call witnesses- Superintendent of Licences v Ainsworth Nominees Pty Ltd (1987) 9 NSWLR 691.
• Voice identification-R v Hentschel (Unreported, Supreme Court of Victoria, 11 August 1987).
• Legal professional privilege of in-house lawyers-Waterford v The Commonwealth (1987) 163 CLR 54.
• Hearsay evidence-business records exception-Ross McConnel Kitchen & Co Pty Ltd (in liq) v Ross (No 1) [1985] 1 NSWLR 233.

Chapter 5: Consequential Amendments in New South Wales

• Presentation of evidence by children-Crimes (Personal and Family Violence) Amendment Act 1987, Schedule 3.
• Character evidence and evidence of sexual experience-Crimes Act 1900, ss 413A, 413B.
• Police Questioning of Children -Children (Criminal Proceedings) Act 1987.
• Evidence of Reproductions Evidence (Reproductions) Act 1967.

Chapter 6: Judicial Powers

• To direct affidavit evidence
• To expedite proceedings