Encoding similar facts - has it been worth the effort? An Australian experience

• Author: Frank Bates
• Position: Professor of Law, University of Newcastle (NSW)
• Pages: 59-83

ENCODING SIMILAR FACTS -

HAS IT BEEN WORTH THE EFFORT?

AN AUSTRALIAN EXPERIENCE

FRANK BATES*

I

As is now well known, if not actually notorious, in modern Australia, in all

federal courts/ New South Wales,2 the Australian Capital Territory3 and

Tasmania,4 substantial changes were wrought to the law of evidence. Essentially,

this legislation is identical and is referred to as Uniform Evidence Legislation.

The Australian Law Reform Commission report which gave rise to the Acts5

appeared to envisage that they would be adopted by other Australian jurisdictions

so as to give rise to a uniform Evidence code. That, according to one recent

commentary,6 is now unlikely to be the case. However, it probably was never

likely to be: in the State of Queensland, there had been substantial earlier

legislative intervention7 and, in South Australia, opposition to change had been

articulated trenchantly by a former judge.8

In addition, there has been not inconsiderable dispute as to the exact status of

the legislation, as to whether or not it amounts to a Code, in the sense in which

that word is usually used.9 Thus, s 8 of the Commonwealth Act, replicated

Professor of Law, University of Newcastle (NSW).

1 Evidence Act 1995

(Cth);

Evidence (Transitional Provisions and Consequential

Amendments

Act

1995 (Cth).

2 Evidence Act 1995.

3 Above n 1.

4 Evidence Act 2001.

5 Evidence, Report No 38, 1987.

6 K J Arenson and M Bagaric, Rules of

Evidence

in

Australia:

Text and

Materials

(2005) at xli.

7 Evidence Act 1977(Qld).

8

See,

WAN

Wells,

"A Critique of the Australian Law Reform Commission Draft Evidence Bill"

(1992)9 Aust Bar Rev 185.

9

Thus,

T Honors, About

Law:

An Introduction (1995) at 109 refers to "A statute that sets out all

the main rules of law on a particular topic."

elsewhere, provides that the Act does not affect the operation of other legislation

or (consistent) common law and equitable rules of evidence. Even outwith the

provision, dispute has arisen, so that, for instance, to adopt a sufficiently well-

known instance, in R v Ung,10 Smart AJ emphatically stated that the Evidence Act

1995 was "not a code" in relation to res gestae exception to the role against

hearsay. Hence, the challenged evidence continued properly to be admitted.

Similarly, in R v Adam11 the New South Wales Court of Appeal took that view

whilst emphasising that the Act did not expressly provide that the principles

enunciated in the High Court of Australia in O'Leary v The King,12 which also

related to that exception, had been abolished.

On the other hand, another judge, speaking extra-judicially had said13 that,

"In a practical sense, the Act will operate as a code. Thus, in

dealing with evidentiary problems in the relevant courts, it will

be necessary to look to the statute for the answer. It will not be

relevant to look to the common law and prior statute law (and

cases interpreting those statutes) unless the previous law has not

been changed, or to do so would assist to understand the changes

that have been made or terminology employed. The experience

of the US Federal Rules [of Evidence] suggests that the Act will

become a 'pocket bible', and the law, therefore, more

accessible."

Although one Australian commentator has written14 that the res gestae

concept borders upon similar facts but is, strictly speaking, outside it, it is similar

facts which are the subject of the present discussion. There are good reasons for

the investigation of similar facts in the instant context: First, there have been two

recent cases - one from the State of New South Wales and the other from

Queensland - which illustrate the process of seeking to reduce what had hitherto

largely been a process devised by judges to a novel statutory form, and how it

may be compared with another from a State which has not adopted the Uniform

legislation. Second, similar fact evidence has been a source of fascination since

10 (2000) 112 A Crim R344 at 353.

11 (1999) 106

A

Crim R 510 at

515

per Spigelian CJ, James and Bell

JJ.

12 (1946)

73

CLR 566.

13 T H Smith J, "Evidence Act 1995 - An Overview" (Paper Presented at the College of Law

Sydney, 8th April

1995,

para

18.

14 JRS Forbes, Similar Facts

(1987)

at 15.