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Univ. of South Carolina School of Law

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Tuesday, July 15, 2008

Evidence Laws Turned Upside Down Down Under?: Victorian Government Finally Introduces Evidence Bill, 2008

It's taken 4 years, but the Victorian government has finally introduced the Evidence Bill, 2008, which, if passed, would make Victoria the 4th Australian jurisdiction (after the Commonwealth, NSW, ACT, and Tasmania) to adopt the uniform evidence legislation.  The entire enterprise seems to me to be fairly significant and somewhat akin to when the Federal Rules of Evidence took effect here in 1975.  That's not to say that Australia previously lacked an evidence code, but that code -- Evidence Act, 1958 -- has been the subject of much derision, with an Australian Supreme Court judge lecturing on evidence to a Bar Readers Course saying that the rules within it are so ridiculous that only especially irritating middle class unrepresented litigants ever dare to raise them.

One of the main problems with the earlier code, as indicated by the Media Release accompanying the bill, was its rigid approach to hearsay evidence.  Indeed, my research on the matter led me to a law review article indicating that while "leading judges in Australia attempted to introduce a more flexible approach to hearsay," their efforts were met "with only modest success." Marc Rosenberg, The Contribution of Chief Justice Lamer to the Development of the Law of Hearsay, 5 Can. Crim. L. Rev. 115, 176 (2000).  The same isn't true for Evidence Bill, 2008, which has profligate hearsay exceptions built into its Chapter 3, which covers hearsay.

Speaking of the Media Release, the most interesting thing about it is that it touts with much ballyhoo that the "[n]ew evidence laws will cut red tape and potentially save Victorian businesses about $10 million a year."  I'm not sure that I've ever seen an evidentiary change linked to the economy before, and in looking at the reason cited by the Media Release, I'm troubled.  According to the Release, the reason for the financial savings is that:

     “The legislation removes the original document rule which, when combined with current statute law, is complex and unwieldy.  The rule has resulted in businesses, Government and not-for-profit organisations retaining documents in their original form as part of a prudent risk-management strategy for potential litigation. This places an unnecessary record-keeping burden on businesses.  The abolition of the original document rule will bring much-needed clarity to this area of the law....In fact we predict that we can save business $154 million per year by July 2009 and $256 million per year by July 2011 – just by cutting red tape."

Now, I know that many people feel that the Original Document Rule, or Best Evidence Rule, is archaic and no longer necessary in modern society.  I, however, feel the opposite, as I express in my forthcoming article, Even Better than the Real Thing.  I believe that because now nearly anyone can create a fairly convincing forgery fairly quickly, and because originals may possess physical characteristics of the highest importance which no copying process can produce, the Rule has continuing vitality and that the proposed change could cause acute damage.

There are, however, some more positive changes that Evidence Bill, 2008 would make such as:

    -Creating a specific exception to the hearsay rule to allow for evidence to be given of the existence or content of traditional laws and customs of an Aboriginal or Torres Strait Islander Group.

This seems to me to be similar to Federal Rule of Evidence 803(20), which allows for the admission, as an exception to the rule against hearsay, of "[r]eputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

     -Extending the courts' discretion to excuse a married person from testifying against their partner to de facto partners, including same sex partners.

This seems to be a very positive development and in line with what I recommended California adopt in the wake of the recent ruling of its Supreme Court.

     -Promoting uniformity in the evidentiary rules in Australia.

I will note, however, that some have claimed that there won't be complete uniformity, even if Evidence Bill, 2008 takes effect.

(Hat Tip to my colleague, Mark Wojcik, for sending me this story).

[EDIT:  Stephen Warne, whose post I hyperlinked in my post sent my an e-mail concerning some errors I made In my post.  Warne points out that:

     First, the Evidence Act, 1958 (Vic.) is a Victoria-specific statute, and so is not 'Australian'. There are other somewhat similar but nevertheless very different statutes in other statues which have not adopted the uniform evidence legislation. And it is just an Act which modifies the common law and so is certainly not a 'code' as we understand that term in relation to statutes in Victoria.  Secondly, our highest court is the High Court and the states each have an inferior Supreme Court at the top of their tree. The judge was a judge of the Supreme Court of Victoria. Thirdly, he did not say 'the rules within it' are so ridiculous, but rather that a couple of them were.]

-CM 

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