Queensland should refrain from enacting the Uniform Evidence Act

The uniform evidence act is the statute that judges use to determine which facts should be presented as true and which do not qualify; it is a tool used in litigation to support or refute a claim. The ALRC made the decision in February 2005 to convene meetings in Queensland with interested parties and pertinent stakeholders. The Queensland Law Reform Commission was where they convened. The uniform evidence act suggested paper was reviewed by the QLRC at the attorney general’s request. The “uniform evidence act” was introduced and enacted due to the “limited nature of the terms of references” and the thorough reviews piloted by ALRC, QLRC has not yet decided to engage in step by step analysis of the bill (Blackwell & Seymour, 2015). In some parts of the discussions, the QLRC discovered some merits and demerits of differing approaches to the evidence law and the Uniform Evidence Act. The QLRC analysis considered some of its views and those of other bodies like the criminal justice commission and also the Queensland’s Supreme Court. Also, it considered some of the recent cases in the high court, court of appeal the Supreme Court and some relevant ranges of Queensland legislation. Moreover, the Queensland commission found differences between the Uniform Evidence Act and the current situation in the state and concluded that, concerning the original document, the approach of the uniform act is applicable and preferable to the current situation. According to the common law, no one can question the witness regarding the content of any document unless the original one is produced and admitted. On the other hand, Queensland has avoided the appeals from the uniform lobby to sign the law; it seems like the state has decided to take a separate path and form its evidence laws. The paper shall decide on whether Queensland should continue going alone or it should consider other things and sign it.

The Queensland and the uniform evidence jurisdiction apply different approaches to this law. The state believes that the ordinary rules prevail although there are some significant legislative reforms. For completion of this paper, it shall discuss some topics such as 1) spousal competency, privilege and compellability, 2) the prior admissibility statements for truth and 3) the hearsay exception in cases where the witness is not available. Also, the paper will discuss specific concerns through identifying the differences between the Uniform Evidence Act and the Queensland evidence law.

The Background of the Uniform Evidence Act

The Australian Law Reform Commission (ALRC) was handed a reference from the attorney general of the Commonwealth. The text required the ALRC to review the applicable laws of evidence within the proceedings in the federal courts as well as the courts of territories. The plan here was to produce a comprehensive proposal based on the relevant concepts to the current situation and the anticipated demands. After a lengthy consultation, the ALRC published an interim report in 1985 and the final one in 1987 (Gibbons, 2014). The reports consisted of draft legislation, and the New South Wales Reform Commission (NSWLRC) decided to adopt the ALRC’s draft. Some other necessary and relevant bill in Queensland includes the police powers and responsibilities act, the criminal code as well as the criminal law among others. After more consultation and the original draft amendments, Wales came up with an identical evidence bills in 1993. In 1995, the evidence act was passed and started in April the same year (Parkinson & Cashmore, 2015). The New South Wales, on the other hand, accepted the same law and began its operation in September (Anderson, 2016). The commonwealth act application is only in the federal courts and other courts in the capital territories. But the New South Wales (NSW) act application runs on federal and the state cases. The subsequent amendment to the same state legislation meant that the Commonwealth and the NSW are not strictly uniform again. However, the two acts are labeled as the consistent evidence. In 2001, Tasmania adopted this law with some modifications. Norfolk Island also decided to pass a mirror legislation in 2004. Other Australians jurisdictions including Queensland have had plans of enacting the uniform act although they are yet to do so till date.

The Features of the Uniform Evidence Act

The Act’s intention was not to codify the laws of evidence. It also does not deal with some of the evidence related challenges like the burden of proof, the power of a judge to call the witnesses and even the addresses’ order. Sections 8 and 9 of this act preserves the applicable statutes and the common law in situations where it is consistent with the uniform act provisions. But it has also been seen that; some chapters among them being chapter 3 is used to operate as a code especially where the legislature intends to cover a particular field.

Structure of the Uniform Evidence Act

It follows the order that would make the evidence to arise at trial. Issues regarding adducing of proof about the documents and witnesses are dealt with in chapter two and three which is the leading section of the statute and deals with evidence admissibility. Chapter four is where the issues of the proof lie. Section 55 carries the evidence admission flow chart which guides on whether the evidence is admissible.

The Queensland Evidence Law

The evidence law governs the form and nature of proof brought before the courts. Two regimes are applicable in Queensland. The 1995 evidence act regulates the evidence reception in the federal courts and the states; the evidence rules are centered in the Queensland legislation particularly the evidence act of 1977, the common law and two court rules. According to judiciary act section 79, the state evidence laws can only apply in the state courts practicing the federal jurisdiction.

Body

In Australia, the “uniform evidence act” is the leading force for change and those who created an enacted throughout the country. Today, it is applied to the commonwealth, the Northern Territory south of Wales, Tasmania and Norfolk Island as well as Victoria (Northern Territory of Australia, 2016). In 2004, the Victoria commission received the terms of reference demanding to review its evidence law with an objective of introducing uniformity with the applied law in the federal courts and other jurisdictions in Australia. During this time, the central and the NSW attorney generals requested the Australian and the NSW law reform commissions to review the federal and uniform act that ran from 1995 (Victorian Law Reform Commission, 2006). The Victoria commission brought together those reviews, and the three committees came up with one report in 2006, suggesting some alterations to the uniform evidence act. Moreover, they conducted an investigation focusing on how to implement the action in Victoria, and the implementation report released in 2006 (Martire & Edmond, 2016). Those recommendations were utilized in the model the uniform evidence bill of 2007 and then later amended in 2010. Most of the jurisdictions in Australia have modified the evidence laws to fit the model uniform bill. The new evidence act of Victoria formed in 2008 was entirely based on this legislation and the final report from the commission about implementation. Most of the states in Australia have adopted the uniform evidence act except the Queensland, South Australia and the Western Australia (Hemming, (2017).

Spousal Competency, Privilege and Compellability

According to the uniform evidence act, it assumes that every person is compellable and competent to provide the evidence. Spouses, children, parents and de facto partners in a criminal case then receive exemptions. They can object testifying and then the court has to balance the harm to the witness or any relationship against the desire of having the evidence provided. The attractiveness of the uniform evidence act lays in the fact that it tries to balance the essentiality of maintaining a personal relationship against the need of a specific case for the evidence. But after scrutiny, one should find that the mode has serious flaws. For instance, discretion would mean uncertainty where it arises on the trial time on whether the witness shall testify or not.

A second reason is that the discretion triggering seems confined to specified relationships. The act here entirely restricts itself to spouses, parents, de facto partners and children of the defendant. Placing limitations on people who plan to avoid testifying is taken as arbitrary in the sense that the law shall exclude others who fall in the same situation. For instance, it does not consider siblings or grandparents that raised the accused. The third reason is that the act is arbitrary in its exemptions, witnesses have no right to be excused from testifying even in cases that involve certain crimes against children or the incidence of domestic violence. Those specified exceptions are all arbitrary, and when applying them, one judge found: a rigid distinction between offenses of domestic violence and other types of violence offenses may bring incongruous results. For instance, when a woman slaps her husband due to some insulting remarks, then she becomes guilty of the offence of domestic violence and the court cannot uphold the objection by any of her children called to provide evidence against her. However, in the case where the woman murdered a neighbor instead of slapping the husband, then the court can balance the harm possible to be caused to the child against other factors.

Concerning privileges, the Uniform Evidence Act lumps it with compellability. Similarly, the opportunity is discretionary and subject to balancing the possibility of harm to the relation or an individual versus the evidence desirability. Basically, the legislation continues to mandate the privileges for spouses, parents and the children of the defendants. Furthermore, under this act, the opportunity is unavailable. Rights qualified by discretion and also by the offense are unworthy for preservation.

Queensland has been going its own way in Australia, of recent, it abolished the spousal incompetence, privileges and the compellability. The legislation is just simple. Witness in the criminal proceeding: here each charged person should give evidence on behalf of the defense regardless of whether he is charged alone or jointly with a second person. But it does not seem compellable to do so, and thus it would give a fair trial, but on the other hand, there would be a probability of lacking the exact information necessary for determining the judgment. Also, the accused person’s spouse is compellable and competent in a criminal proceeding to help provide evidence in any court whether for defense or prosecution without the defendant consent (Feld et al. 2015). Such a process should be termed as unethical since it has a probability of providing false evidence that would lead to unfair punishment in cases of not being applied in that approach. In the same criminal proceedings, the spouse is compellable and competent to provide the communications made by both partners during the marriage time. Though it may seem as a violation of the family privacy, it would help to provide sufficient evidence against the accused. The rule is simple, arbitrary and fair and that is the grounds used to prevent the abolition of the adoption of the uniform evidence.

Simplicity is an attribute subject to admiration. It carries much certainty in its application and also seems to be the fairest solution where every person receives the same treatment without discrimination. Same-sex partners, de facto spouses, parents, siblings and all children get the equal treatment. There are no exempt crimes and no arbitrary offenses required. It would have no difference because spouses are allowed to testify just like any other person. The marriage institution cannot crumble, and individual relationships or marriages would continue. The fact of the wife going to the police cannot destroy the union. People should not think that the prosecutor would call spouses the willy-nilly, no one would use such a term unless they have a method of controlling the witness through any possibility of a prior statement, although it could have a useful attribute because the spouse decided to state the police. In some situations, the spouse can be somehow religious, and maybe the oath can hold the conscience leading to telling the court what the other spouse had said. Also, they can also contradict the statement, but in such a scenario, at least one fact can provide more explanation or even deny any necessary information, but the triers would be in a better position of delivering the statement truthfulness when admitted to the evidence.

It also means that the privileges of exemption in this task is somehow exceptional and hence should get disapproved. Lawyers and judges should forget this outstanding attribute but also expand them as if they were fundamental principles, worthy to be followed into the remotest analogies. Such an attitude is unwholesome because the truth investigation and the testimonial enforcement demands the restriction and not the expansion of those privileges.

Queensland is right, but the defined spouses should be treated as ordinary witnesses since they would be made competent and compellable by the defense and the crown in every criminal case and thus no availability of privileges on refusing to disclose what the accused person could have convinced the witness. It is ethical to the criminal courts best interest to get all the necessary evidence regardless of the source. The only situation that evidence should be denied is when there exists valid competing social values without proof apart from rote statements which would preserve the spousal incompetency and thus privilege becomes necessary to maintain harmony and bond within the marriage. According to how most people understand; it is the operation of the law by the state compelling the testimony and partners do not testify willingly. There also exists some reluctant witnesses and where need lacks, and the society’s interest in receiving the evidence carries the day. In this section, it means that Queensland should just continue with its system and avoid adopting the uniform evidence laws.

The Prior Admissibility Statements for Truth

Assume that the spouse is compellable and competent. After taking the stand, he or she recants the earlier statement. Then found as adverse and cross-examined concerning the statement made before and then the issues become whether we can use the prior inconsistent report as evidence for truth. For the decision to be made, the context from the previous statement had to subject to examination (Edmond, et al. 2013). The prosecution can only concentrate and admit the first report for its truth. According to the common law, the inconsistent statements made by the non-party witness are inadmissible if offered for their truth unless the witness adopts it. They can only be admissible to prove the occasion before; the witness had said something inconsistent with the currently offered statement. And juries can now instruct to ignore what was said earlier as the evidence of truth. The service of the report is to the witness credibility. In such limiting instruction, many labels that process as a pious fraud (Dhagamwar, 2015).

In Queensland, the uniform evidence act first inconsistent statements are usually admitted for their truth although under different laws and conditions. The applicable section of Queensland here states that the first contradictory or inconsistent statement made by the witness should be proved by either section 17, 18 or 19. The announcement should be made admissible as evidence of whatever fact made before which the oral evidence would be acceptable. Contrary to the evidence acts in other states, Queensland addresses the inconsistent statements. But the only provision is that the made report should be the one made orally and termed as admissible. Witnesses also have a chance of giving direct oral evidence as to the statements made by the accused person, and hence the courts in Queensland recognize that such admission is admissible for their truths. With that process, the courts are likely to provide a fair judgment with very little confusion from the two statements. It would also allow the witnesses to be careful as they give the accounts; they would ensure giving the exact truth due to the uncertainty of recanting that first evidence. The law in Queensland is simple and clear as seen and it is better to be preferred for adoption by other states. There would be no need of complicating things unnecessarily when we already know that the current situation is near perfect. Queensland should not adopt the uniform evidence legislation at all.

The Witness Unavailability

The uniform evidence applies to criminal proceedings if the previous representation maker is unavailable to testify to the asserted fact. The rumor is not applicable to the proofs of the prior representation made, especially if made in situations that would make it highly probable for the representation reliability questions. Under the law, the only thing that can make a person unavailable is the circumstances that make him unlawful to give the evidence about the stipulated fact (Edmond, 2015). Also, all the required steps have been taken to verify the reasons as to why the person cannot be available; compelling to give the revelation without success.

Let us assume that the court considered a spouse objecting to testify as unavailable, the problem concerning the first and second-hand hearsay arises again only that at this time, it shall require a direct understanding of the asserted fact and exclude the first representations made by other people. The law requires creating the description in situations that seem highly probable for it to be reliable and this takes us back to the issue of ”boxing” the case (Adams & Wareham, 2014). In the criminal appeal of Ambrosoli v R in the South Wales court. It focused on the need of making the first representation instead of the general accuracy of it, although it did not allow consideration for the first or the second statement or even the conduct of the person making the prior representation. The Queensland evidence act of 1977, section 93 B gives a chance for the admission of another hearsay statement in the case that the maker is unavailable. The applicable parts requires the article to apply in the criminal case only if the individual with the knowledge of the asserted fact made the representation and also if he or she is unavailable to provide for the evidence because of either death or physical and mental unfitness.

Also, the hearsay rules do not apply to the representation evidence given by the person who either heard, saw or even perceived, in the situations that the representation was made in circumstances that made it highly probable and reliable. The bases of section 93B is on the uniform evidence act although it contains more restriction (Santow, 2006). First, it is only applicable in the prescribed criminal proceedings limited to offenses as chapter 28-32 of the penal code act defines. Personally, I would understand them as crimes of violence or even causing injuries and limit its application only creates arbitrary and exclusions and thus seems illogical. For instance, stalking (chapter 33A), kidnapping (33) and robbery in chapter 38 are all not prescribed as criminal proceedings. Second, it limits the unavailability only to the dead, mentally or physically unfit people unable provide the evidence. But if the witness can refuse to testify, then the situation is not caught. Let us assume that the witness is dead and the prosecution decides the statement using section 93B, what the law should resolve is the section’s scope. Should it apply only first-hand hearsay? Section 93B does not have the hearsay division unlike the uniform evidence act, also, Queensland does not admit second hand hearsay through section 101.

Section 93B talks of people with personal knowledge of an asserted fact. The hearsay exceptions in sections 92 and 93 carries the phrase ”situations where the direct oral evidence of a certain fact is admissible.” The phrase seems to allow the representation admissibility regarding the admissions from the accused. Section 93B does not contain the phrase, maybe this was by design, and if so, then the section is confined to the first-hand hearsay.

Another problem requiring resolution is the scope of ”made in circumstance.” Once more, could Queensland be going to go by the limitations mentioned by courts in their consideration of the comparable uniform evidence act legislation or shall the court box the circumstance. It is open, in Lester v R, the judge quoted and followed the Ambrosoli v R case although the court of appeal did not directly endorse this interpretation. If Queensland is to support this process in situations of unavailable witness, then it would be better to sign the uniform act legislation since it would seem direct, efficient and fair. Yes, with this condition, Queensland should adopt the law.

Confession

According to the common law in criminal proceedings as applied in Queensland, a confession is admissible if the person is doing it voluntarily and also if not subject to exclusion in the court discretion. Contrary to that, the uniform evidence act carries different provisions that deal with admissibility such as the outright confession. The purpose of that section is to impose reliability requirement and the fairness on the admission. QLRC also notes the same fairness considerations and suggested reliability as relevant in the common law in the Queen v Swaffield. The methods used in the ALRC paper concerning the provisions that deal purposely with the children evidence has not wholly been consistent. In some situations, the ALRC intentionally abstained from amending the act with reasons that the procedural rules concerning child as a witness should not be part of the evidence legislation designed to have a general application. Such scenarios would not allow an individual to propose for the adoption of the ac by the Queensland. It is better if the state remains in its current state instead of taking an imperfect path. However, in some situations, the ALRC proposed for the amendments to the act dealing with the child witness. QLRC also recommended reviews to each of the proposals regarding the children evidence to ensure the inclusion of a consistent approach in the uniform evidence acts. It also suggested to the ALRC for provisions in the evidence act of 1977 to facilitate the children and individual witness receipts of evidence. With all those recommendations, it is clear evidence that the adoption of the bill could bring some imbalances on what is already balanced.

Concerning religious confessions: People of the clergy of any faith can refuse to divulge any made religious confession or its contents when the clergy member does not apply in the situation where the communication made was for criminal purposes. The meaning of the sacred disclosures is the confessions made any person or a clergy member in a professional capacity according to the church rituals or the relevant religious denomination (Bathurst & Schwartz, 2015). The clergy members have the rights to the privileges and not the penitent, and those benefits remain regardless of how the person who confessed could wish (Northern Territory Government, 2011). The Victoria and the northern territory evidence legislation also contains the religious confessions; privileges are not to the person who disclosed, and in the Northern Territory, benefits are never applied to communications made for criminal reasons (Anon, 2017). Some of such ideas, if well sited in the uniform evidence acts are enough to say that the evidence act would not be safe as compared to the existing laws in Queensland. Moreover, the experience that the land has is better if the society continue to exploit it rather than adopt something new that would seem timely and financially costly to be implemented.

Recommendation

The uniform evidence act was able to introduce considerable changes to the laws of evidence. The ALRC notes that it eliminated the original document in favor of a flexible method. Substantially, the hearsay rule has faced modifications; the coincidence rule and the admissibility tendency were all restated. The privilege operations against self-incrimination were also modified. Too, it reiterated the court’s refusal of admitting the evidence, and finally, the application of computer-generated pieces of evidence received facilitation.

Concerning a given area, the courts should at least regard the preexisting concepts of the ordinary laws. Both reports, the interim and final agreed on several features of criminal and civil trials as well as objectives of the policy of the same civil and criminal justice systems. The conclusion was that critical elements of the policy frameworks were: 1) fact-finding; It is a pre-eminent courts task with recommendations directed mainly in enabling the parties to provide the probative evidence available to them. 2) The criminal trial and civil trial; all differ in purpose and nature which requires consideration. Concerning the evidence admission against the accused, more severe approach is necessary. The difference was also seen in areas like compellability, the cross-examining of the defendant and even in the exercise of the court’s power in issues such as the granting of leave. 3) Predictability, where the judicial discretion should be reduced notably concerning the evidence admitted. Instead of options, rules should be preferred. 4) Time cost and also other concerns. Simplicity and clarity should be the objective.

Conclusion

According to the argument and analysis above, the currents Queensland approach would be the best option. The trial systems should rest on the witness coming forward to give evidence. Society should be cautious and accept that it is the responsibility of every individual to provide the necessary information or evidence. An essential consideration concerning the first inconsistent statement should be that the maker is made available for questioning. The Queensland 101 and its interpretation is the best, simple, straightforward and also judicially efficient and the courts should consider following the same route. Moreover, it has proven to be applicable for more than thirty years. Admitting the statement even in situations where the maker is unavailable would mean that the necessity for that evidence is high; no other means of getting an extra evidence. It also denies the accused the opportunity to test the unavailable statement maker assertion. Before admitting the statement, everyone should ensure reliability. The legislation under the Queensland evidence act is sometimes rigid, but the question at hand should be how sufficient and reliable the statement is before it is put before the fact triers to assess them. In the case of an increased technicality in the application of the law, then the principle loses its meaning. The ”Australian Law Reform Commission (ALRC)” to an extent is beginning its journey of reforming the evidence laws by outlining specific guiding principles and focusing on whether the rule: 1) reflects alleged rationale adequately and other necessary considerations of the policy. 2) Whether pointlessly uncertain; 3) exclude probative proof. 4) Unfairly operate on witnesses and the parties; and finally 5) the addition of time and costs in and out of the court. All these principles require consideration which would be stimulating to test resultant uniform legislation against the criteria at which it is built. In most states, the consistent evidence act does not do well because it is too complicated and obtuse for the courts to understand or even laypersons alike, the probative evidence is excluded here without a valid purpose, causes uncertainty, and also, it must add time and cost of the court actions. It is better for the Queensland to stick to the current situation of the law and avoid any attempt to sign the uniform evidence act since it would make things too complicated even when it is already simple.

References

Adams, M. W., & Wareham, C. K. (2014). Is Judicial Consideration of Credibility and Reliability under Section 137 of the Uniform Evidence Law a Guarantee of Fairness or Moral Treason. Monash UL Rev., 40, 243.

Anderson, J. (2016). Uniform evidence law. Leichhardt, NSW: Federation.

Anon, (2017) available at: http://report on the law of uniform evidence act in the northern territory [Accessed 20 Dec 2017].

Bathurst, T. F., & Schwartz, S. (2015, September). Illegally or improperly obtained evidence: In defence of Australia’s discretionary approach. In Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales, (Vol. 13, No. 1, p. 79). Judicial Commission of NSW.

Blackwell, S., & Seymour, F. (2015). Expert Evidence and Jurors’ Views on Expert Witnesses. Psychiatry, Psychology and Law, 22(5), 673-681.

Dhagamwar, V. (2015). Towards the uniform civil code. Indian Law Institute, New Delhi.

Edmond, G., Cole, S., Cunliffe, E., & Roberts, A. (2013). Admissibility compared: the reception of incriminating expert evidence (ie, forensic science) in four adversarial jurisdictions. U. Denv. Crim. L. Rev., 3, 31.

Edmond, G. (2015). Forensic science evidence and the conditions for rational (jury) evaluation. Melb. UL Rev., 39, 77.

Feld, F., Alexander, T., & Bagaric, M. (2015). Uniform Evidence Law: Principles and Practice.

Gibbons, J. (2014). Language and the Law. Routledge.

Hemming, A. (2017). Adoption of the uniform evidence legislation: so far and no further?.

Martire, K. A., & Edmond, G. (2016). Rethinking expert opinion evidence. Melb. UL Rev., 40, 967.

Northern Territory of Australia, (2016) The Report on Evidence (National Uniform Legislation) Act.

Northern Territory Government, (2011) Discussion draft of the uniform evidence act for the Northern Territory: Department of Justice. [www.nt.gov.au].

Parkinson, P., & Cashmore, J. (2015). Reforming Relocation Law: An Evidence‐Based Approach. Family Court Review, 53(1), 23-39.

Santow, E. (2006). REFORMING THE UNIFORM EVIDENCE ACTS IN RESPECT OF TRADITIONAL LAWS AND CUSTOMS.

Victorian Law Reform Commission, State of Victoria, (2006). Implementing the Uniform Evidence Act: Report. Available at [www.alrc.gov.au].