Review of the evidence act

Reference received: 2 July 2004

Judicial notice: Pathways Employment Services Pty Ltd v West (2004) 212 ALR 140 (NSW SC), [49]

Report

Report 112: Uniform Evidence Law, December 2005

Published jointly by the Australian Law Reform Commission ( Report 102) and the Victorian Law Reform Commission (Final Report).

Tabled in parliament: 28 February 2006

Legislative action: Evidence Amendment Act 2007 (PDF, 639.9 KB)

Judicial citation: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) (2006) 229 ALR 179, 185 (FCA); S v Boulton (2006) 232 ALR 92 [101]; Cornwell v The Queen [2007] HCA 12 [136]; R v Cardamone (2007) 171 A Crim R 207 [67]; R v RW [2008] VSCA 79; R v DF [2010] ACTSC 31 [254]; Clarke v R [2013] VSCA 206 [23]; Rich v A-G (NSW) [2013] NSWCA 419 [46]; Shea v TruEnergy Services Pty Ltd (No 5) [2013] FCA 937 [50]

Journal article: A Grey, "Not-so-uniform evidence law: Reforming Longman Warnings" (2007) 19 Current Issues in Criminal Justice 172

Preliminary paper

Preliminary Paper: Australian Law Reform Commission, Review of the Evidence Act 1995, ALRC Issues Paper 28, December 2004

Discussion paper

Discussion Paper 47: Review of the uniform Evidence Acts, July 2005 - Published jointly by the Australian Law Reform Commission (DP 69) and the Victorian Law Reform Commission

Judicial citation: Royal Women's Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85, [31]

Terms of reference

I, BOB DEBUS, Attorney-General of New South Wales, HAVING REGARD TO:

the importance of maintaining an efficient and effective justice system in which clear and comprehensive laws of evidence play a fundamental role,

the experience gained from nearly a decade of operation of the uniform Evidence Act scheme, and
the desirability of achieving greater clarity and effectiveness and promoting greater harmonisation of the laws of evidence in Australia

REFER to the New South Wales Law Reform Commission, for inquiry and report pursuant to section 10 of the Law Reform Commission Act 1967, the operation of the Evidence Act 1995 (NSW).

1. In carrying out its review of the Evidence Act 1995 (NSW), the Commission, will have particular regard to:

(a) the following topics, which have been identified as areas of particular concern:

(i) the examination and re-examination of witnesses; before and during proceedings;

(ii) the hearsay rule and its exceptions;

(iii) the opinion rule and its exceptions;

(iv) the coincidence rule;

(v) the credibility rule and its exceptions; and

(vi) privileges, including client legal privilege

(b) the relationship between the Evidence Act 1995 (NSW) and other legislation regulating the laws of evidence and whether the fact that significant areas of evidence law are dealt with in other legislation poses any significant disadvantages to the objectives of clarity, effectiveness and uniformity

(c) recent legislative and case law developments in evidence law, including the extent to which common law rules of evidence continue to operate in areas not covered by the Evidence Act 1995 (NSW)

(d) the application of the rules of evidence contained in the Evidence Act 1995 (NSW) to pre trial procedures

(e) any related matter.

2. In carrying out its review of the Evidence Act 1995 (NSW), the Commission, in keeping with the spirit of the uniform Evidence Act scheme, will:

(a) work in association with the Australian Law Reform Commission, with a view to producing agreed recommendations,

(b) consult with the other members of the uniform Evidence Act scheme – the Australian Capital Territory and Tasmania,

(d) consult with other relevant stakeholders, in particular the courts, their client groups and the legal profession;

in the interests of identifying and addressing any defects in the current law, and with a view to maintaining and furthering harmonisation of the laws of evidence throughout Australia.

3. The Commission is to report no later than 5 December 2005.

Note: See also Reference 13 Evidence for an earlier review of the law of evidence