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EVIDENCE BILL 2001 (No. 78)

Second Reading

Dr PATMORE (Bass - Minister for Justice and Industrial Relations - 2R) - Mr Speaker, I move -

That the bill be now read the second time.

Mr Speaker, today I introduce a package of seven bills which will constitute a significant reform of evidence law in Tasmania. The bills that make up this package are the Evidence Bill, the Oaths Bill, the Evidence on Commission Bill, Evidence (Children and Special Witnesses) Bill, Evidence (Consequential Amendments) Bill, Criminal Code Amendment (Evidence) Bill and the Parliamentary Privileges Amendment Bill.

The major aim of these bills is the provision of a modern and comprehensive law of evidence for Tasmania. Reform of the legal system is essential to ensure that it meets the needs of contemporary Tasmania. The way that evidence is taken in a courtroom is essential to the efficacy of the legal system. The current law of evidence is a significant cause of cost and delay in many proceedings. Also, where relevant evidence is excluded because of an overly technical or inappropriate rule of evidence, injustice may result.

On the state of present evidence laws in Australia, and the need for their reform, the Australian Law Reform Commission said:

'The present law is the product of an unsystematic statutory and judicial development. It is a highly complex body of law which is arcane even to most legal practitioners. It contains traps and pitfalls which are likely to leave the unrepresented litigant baffled, frustrated and defeated. There are also many areas of uncertainty in the law of evidence - areas on which definitive law is yet to be pronounced by the courts. The need for reform is also demonstrated by what happens in practice: the complexities are ignored, oversimplified versions of the law are applied and the judges try to discourage use of its technicalities.'

Evidence law reform is micro-economic reform. A reformed evidence law will simplify and shorten proceedings. It will reduce costs to government in providing court services and to litigants. Reform is necessary to assist the courts to achieve just and proper decisions with a minimum of expense to all concerned.

This Evidence Bill 2001 which is the central component of this package is based upon similar acts of the Commonwealth and New South Wales. It is hoped that these acts will form the basis of substantially uniform evidence law throughout Australia. The benefits of uniformity for the legal profession and for efficiency in the conduct of proceedings are obvious. Probably the greatest benefit would be for business. Business could achieve substantial savings through lower legal costs and record-keeping costs if uniformity is achieved. The role of the Evidence Bill 2001 in seeking to achieve uniformity is best seen by considering its origins.

In 1987 the Australian Law Reform Commission - ALRC - issued a major report on evidence, and recommended that a uniform law of evidence should operate in the Federal and Territory courts. It was considered that this would form the basis of a uniform set of evidence rules throughout Australia.

In 1988 the then Tasmanian Attorney-General issued a reference to the Tasmanian Law Reform Commissioner to review the report of the ALRC and make recommendations regarding the adoption in Tasmania of the draft legislation contained in that report.

In 1991 the Standing Committee of Attorneys-General - SCAG - agreed in principle to support substantially uniform evidence laws throughout Australia, and noted that the Commonwealth and New South Wales Governments would collaborate on drafting a uniform bill for consideration by SCAG.

In 1995 the Commonwealth Government and the New South Wales Government both enacted the Uniform Evidence Act - UEA.

In 1996 the Law Reform Commissioner of Tasmania completed his Report No. 74 entitled 'Report on the Uniform Evidence Act and its Introduction to Tasmania'. That report was prepared by a special committee established by the Law Reform Commissioner, containing representatives of the Supreme Court, the legal profession and the Law Faculty at the University of Tasmania. In the report the Law Reform Commissioner recommended that the UEA be enacted in Tasmania, and that the Evidence Act 1910 be repealed. The report also recommended the retention of certain provisions of the Evidence Act 1910. They have been retained.

The Evidence Bill 2001 to which I now turn, is the keystone in this major reform. The other bills in the package provide continuity with existing laws which relate to other aspects of the Evidence Act 1910. The Evidence Bill 2001 provides a modern and comprehensive law of evidence to apply in Tasmanian modern courts. There are two dominant themes in the bill. The first is to remove unnecessary restrictions on relevant evidence being put before courts. The second is bringing evidence law up to date with technology. First, the bill removes unnecessary restrictions on relevant evidence being put before courts. It is artificial, and in many instances absurd, to limit the material a fact-finding tribunal can accept as evidence.

The bill reforms the existing rules relating to admission of hearsay evidence. A hearsay statement of a person who witnessed the relevant event - 'first hand' hearsay - is to be admissible in civil proceedings and for the defence in criminal proceedings, subject to safeguards such as the giving of notice to other parties and to the calling of the person who made it if he or she is available.

Only specific categories of 'first hand' hearsay evidence are to be generally admissible, subject also to the same safeguards, against the defence in criminal proceedings. More remote hearsay is to be admissible if it falls within one of a number of categories which are inherently reliable for some reason - for example, because it is a business record. Secondly, bringing evidence law up to date with record-keeping technology will mean potential savings to Government, business and individuals of millions of dollars annually, if substantially uniform national evidence laws are implemented.

At present the rules for admission of documentary evidence vary from State to State. The original document rule, under which, generally, the contents of a document must be proved by production of the original, applies in all States except New South Wales, but with significant exceptions which differ from State to State. As a result, Governments and businesses operating throughout Australia find it prudent to maintain records in forms that would be admissible in all States and Territories. This means the retention of the most primitive form of record-keeping - original paper records, instead of modern methods. Removing the need to retain original documents will result in very significant savings in storage costs to both Government and business.

The bill provides a number of ways in which the contents of documents can be proved including photocopies, facsimile copies, microfilm output or optical laser reader output. Computer output will also be admissible. Safeguards are provided in relation to the testing of documents and of the means by which documents have been produced or kept.

Uniformity will also result in savings as lawyers will only need to learn one law of evidence - which can be used regardless of the court or part of Australia in which they are practising. They will not have to understand different rules applying in different States and Territories. They will not need additional education or research and significantly their clients will not have to meet the cost of this in their bills.

Mr Speaker, the Evidence Bill paves the way for significant reforms to the application of evidence law in the courts. The bill will permit significant savings in government storage costs by enabling departments and statutory authorities to abandon storage of original documents after their microfilming or transfer to other modern storage media. I commend the bill to the House.

Mr MICHAEL HODGMAN (Denison) - Mr Deputy Speaker, as Her Majesty's shadow Attorney-General for the State of Tasmania, I am pleased to advise the House that the Opposition will support this and the other consequential legislation which the Attorney has brought to the Parliament today.

The late Sir Robert Menzies once said that uniformity breeds mediocrity. But this is a classic exception to that general proposition and, as the Attorney has pointed out, it has involved the work of the standing committee of Attorneys-General. It has also involved the work of the best legal brains in the State of Tasmania. Her Majesty's loyal Opposition takes the view that whilst no legislation is perfect, this is a very good piece of legislation.

I would like to thank the Attorney-General for arranging for me to have a briefing on this and the other bills, by one of the senior crown counsel, Ms Debra Rigby. I would like to thank her for the manner in which she provided that briefing last Friday and for the information which she gave to me which I found extremely helpful.

The Attorney is in a very historic position with this legislation, as we will see when we go into committee, and I mention to the Attorney - I did not have a chance to speak to him before - that whilst we are supporting the bill, we will want the committee stage as there are some matters upon which we wish to raise points. But this is the first uniform, national code that I have ever seen which has brought in two very interesting drafting techniques. As a lawyer, as a parliamentarian and as an ordinary citizen, I am quite impressed with the ingenuity. What they have done, Mr Speaker, is to keep the Evidence Bill 2001 in the Tasmanian Parliament with the same numerical order as the National Code but where, for example, there is a difference between the law in Tasmania and the law in the Commonwealth, then the clause number or what will become the section number of the act is retained but is replaced by what is called a note. I will just give a simple example. When you look at what is clause 6 of the bill, which will become section 6 of the act, 'Territories', you can see that the note is as follows:

'Note: The Evidence Act 1995 of the Commonwealth includes a provision extending that Act to each external territory.'

That of course is a Commonwealth but not a Tasmanian matter but it means that Tasmanian lawyers can see by looking at that note that section 6 does not affect them and it means that visiting lawyers coming into Tasmania to deal with cases in this State will also pick up that point. What I think is exciting about it is that it is beautifully drafted. It reflects great credit on the persons who have drafted what effectively is a rewrite of what was the statutory law of the State since 1910.

Mr Deputy Speaker, I did not bring it into the Chamber but I have my bound copy of the Evidence Act 1910 with all its amendments not only to that act but to consequential legislation. I can assure you that in the Supreme Court, particularly in criminal trials when points arise, there is much ferreting around to find amendments that were put in here and there. We have several judges, one in particular who is an Australian recognised expert of evidence, who have commented on the inadequacies of that Evidence Act and I have actually seen trials adjourned - I am not talking about little trials, I am talking about big trials, Mr Deputy Speaker - while we were trying to sort the matter out. It just so happens that this year I have been in a 10-week murder trial and a 16-week conspiracy trial. My friend, the Honourable David Crean, said he was surprised to see me back but I might say that, after 26 weeks in Supreme Court trials, it is just heaven being back here, and whether I am back for six months, 12 months or five years, I am enjoying it immensely.

Mr Deputy Speaker, my dear friend the shadow treasurer and our Deputy Leader asked me to inquire about the question of cost, and I was going to in the committee stage, but the Attorney has already covered that. It seems from the information provided by the Attorney in his speech and the information given to me by Ms Rigby, and my own commonsense, that it is actually going to save money. Attorney, there are some areas where it may have a cost-negative component but I will deal with them. I can see some areas where the redrafting is going to produce some very significant decisions in relation to first hearsay and in relation to a number of what I will call novel areas because the law in this State is that if a justice of the Supreme Court of Tasmania gives an interpretation on section 26, whilst his judgment stands and is not subject to appeal, that judgment is of very strong persuasive value and some would say has binding effect on the other judges. But if another judge then gives a different judgment in relation to that we have a situation where the full court of the Supreme Court of Tasmania or if it is a criminal matter the Court of Criminal Appeal will resolve it. Then of course sometimes they divide and it goes further and goes, as some cases have, to the High Court of Australia which is the ultimate determinant of the law.

What I am about to say is that in matters where the provisions are national we can expect the judgments of Supreme Court judges in all States and Territories which we can refer to. It is possible that we will have some judgments by Federal Court judges and it is further possible that we will then have matters going to the High Court of Australia. But in the ones that are purely Tasmanian the procedure that I have referred to is basically what will occur and, to that extent, that could involve questions of cost.

Mr Deputy Speaker, I like the drafting of the bill because it has put in very simple terms some of the matters that have been subject to very detailed argument and disputes over the years. I will be referring specifically to the legislation in relation to what is called tendency evidence. That is a very difficult part of the law and I will be dealing with tendency evidence and the tendency rule when we come to clause 3, Attorney, and what happens when you go to section 97(1). I will be addressing some remarks in relation to the extended application of certain provisions of Commonwealth legislation which we will find in clause 5. I will be dealing with the general powers of the courts as set out in clause 11(1) and 11(2). I certainly will be addressing some comments in relation to the sensible decision now not to have a ruling that if somebody calls for a document to be produced or even in fact inspects it in court that person is then obliged to tender it.

When you think that the court takes an oath from witnesses that they will tell the truth, the whole truth and nothing but the truth, the court expects them to do just that. But if a lawyer seeking to elicit the truth calls for a document or asks if he can inspect it, he or she might then find under the old rule that they are compelled to tender it and the document, as the Attorney would know, may well be very damaging to their case. You are then placed in this terrible dilemma, Mr Deputy Speaker: do you call for the document because you believe you know what might be in it and it might elicit the truth? Or do you say, 'No, that's too risky' and so the document is never produced?

I have just read a recent Supreme Court decision and I have noted, knowing a little bit of the background, that there is no reference to a number of documents in this particular case. I can only infer from that that for one reason or another those documents were not put before the court. Whether it would have affected the end result, I do not know but this sort of hokey-pokey about inspecting a document or calling for it to have a look at it and then being obligated to tender it, is now going out the window. I am sure the Attorney will agree with me that that is a right decision.

It is a bit like the matter I raised with you the other day, Attorney, on the state of the State address, we have to have another look at this question of losing your right of last address in the Supreme Court at a criminal trial if you call -

Dr Patmore - I'm already seeking a report.

Mr MICHAEL HODGMAN - I am very grateful and thank you for that.

Dr Patmore - In fact I'm seeking a report on all three issues you raised.

Mr MICHAEL HODGMAN - I am very grateful to you, I thank you and I hope perhaps the Law Reform Institute might have a look at it too.

Dr Patmore - It may not even have to go there.

Mr MICHAEL HODGMAN - Well, I am very grateful to you and thank you.

We are going to have to have a fight occasionally, Mr Deputy Speaker, but he has been very cooperative.

Dr Patmore - I have a different attitude to bills, Michael.

Mr MICHAEL HODGMAN - Well, that is right.

There is another part that I will be dealing with, it is clause 73. Do you know, Mr Deputy Speaker, that if you were in court and were giving evidence - just say it is a civil case - and you said, 'I'm 36 years of age' or whatever you are, there would be an objection taken because that is hearsay because you do not really know exactly when you were born, you only know when people say you were born. What a lot of codswallop!

Dr Patmore - Not anymore.

Mr MICHAEL HODGMAN - It is not anymore, that is what I am saying. If you said in court, 'I'm married', under the old law, 'Oh, no, you can't say that, that's a matter of law as to whether you are legally married, whether the ceremony was in accordance with' - you think you are married, Mr Deputy Speaker, but you cannot say it. That is another thing that went out.

If you talk about your family history, you cannot talk about that, that is hearsay. You cannot say that your grandfather was born at Spreyton or Smithton or wherever, 'Oh no, that's hearsay' and yet is it not stupid that when that law was applied in the Supreme Court if I walked up the road to the Federal Court, as I did, and appeared in a case involving Aboriginal ancestry and whether certain persons had the right to vote or not, which was dealt with by a Federal court judge who came down from Melbourne, of course he accepted evidence of what was said to be history in families and who was traced back to so and so and such and such. Dr Pybus came and gave evidence, so in the one court you could deal with it, in the other court you could not.

Yes, whether you are married or whether you have even been cohabiting, you were not allowed to say that. We have what are called interlocutory proceedings and I will be dealing with these under clause 75. They are little proceedings in the case before it comes to trial and you go before the judge or the Master of the Supreme Court and you get a ruling that you can deliver what are called say interrogatories which makes the other side answer certain questions before trial. Often this saves a lot of time because you know in advance what they are going to say about a particular matter and you can say, 'Well look on that matter they're probably going to win, so it might be wiser if we don't waste the court's time with that or whatever'. In those proceedings the technical argument used to be that you cannot use hearsay evidence; now that has gone.

Obviously the weight of the hearsay and whether it is what we are going to call now first hearsay or second hearsay is a different matter. We are getting rid of a lot of silly old evidentiary provisions which really, I think, have worked injustice.

My colleague and friend the Deputy Leader, who was previously shadow Attorney-General, has discussed the matter with me. She will probably speak, I think in committee, but not on the second reading. Basically we take the view that this is landmark legislation and is worthy of support. It does need to be kept under review, Attorney, and I am certain that judges and the profession will bring to your attention if decisions occur which in their opinion are wrong. Probably the most important provision in the entire legislation is clause 135 which reaffirms the right of the court in its discretion to refuse to admit evidence if the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial or misleading or confusing or might cause or result in undue waste of time. The most important of those three principles, as the Attorney would well know, in a criminal case is if evidence is admitted in which the probative value is slight, it does not really prove much, the prejudicial effect is enormous.

I will give you an example. It is a very old case but you may have read of an Irish patriot called Sir Roger Casement. He was tried by the British for treason in 1916 and in the course of his trial the Crown led evidence that whilst he held a diplomatic post in South America he had written a number of letters which in fact revealed that he had a homosexual relationship with another person at that time.

Mrs Bladel - And the black diary?

Mr MICHAEL HODGMAN - That is the black diary, you are quite right. How that evidence got in I find unbelievable but that evidence, with the treason and all the other things, whipped up such prejudice that any chance Casement had of being acquitted just went out the window and he was hanged. I might just say in passing, the Attorney and I might have some ground for agreement on one thing: he was hanged, of course, in a British prison and the Irish Republic have now been trying for 84 years to get Casement's body back to be buried in Ireland but the British Government has refused. Maybe the enlightened Prime Minister of Great Britain, the Right Honourable Tony Blair, might have another look at that because it is a small but significant request that the people of Ireland would like the body of Casement back in Irish soil.

Anyway, I digress. The bottom line is that is just one example but there are more recent examples where the High Court of Australia has said with some reluctance that the evidence was admissible even though it was very damaging and very prejudicial. It just seems to me so wrong when somebody is fighting for their life and liberty in the Supreme Court and some evidence of some other matter comes up which does not really prove very much but which has a very prejudicial effect.

Sir Wilfred Helsham Fullagar was one of the greatest judges ever in this country and his misfortune was that he was a Justice of the High Court of Australia at the same time as Sir Owen Dixon, who was regarded as the greatest judge in the English-speaking world at that time, but in the case called Mraz v. the Queen, Sir Wilfred Fullagar said that every accused had the right to have their defence fairly put. No matter how weak it was, they had that right to have their defence fairly put. He went on to say that if an accused person did not receive what he or she was entitled to, namely a fiat file according to law, then there had been a miscarriage of justice, as simple as that. If they did not get that to which they were entitled, there was a miscarriage of justice and the conviction would have to be quashed.

So I applaud - I am sure along with the Attorney-General - the provisions of clauses 135, 136 and 137 as to the general discretion. That general discretion, I should say in conclusion, is terribly important because whilst we have trial by jury we have a judge sitting there who directs the jury as to the law and the judge will say to the jury, 'You are bound to accept my directions according to the law and, if I get it wrong, another court will put me right'. The judge will then say, 'As to the facts, that is entirely a matter for you. If the Parliament wanted me to be part of the verdict process, I would be in the jury room with you, but I am not. You go in there and you will sit in that jury room and you come back' and when they come back into court, Mr Deputy Speaker, the foreman or forewoman is asked the historic words, 'Ladies and gentlemen of the jury, are you all agreed upon your verdict?' Assuming the answer is yes, it is then recorded; if the answer is no, 'Are 10 or more agreed upon your verdict?' If the answer to that is yes, the verdict is taken. Then the judge's associate, who is also the clerk of the courts, says the very important words, 'Harken to your verdict as the court records it'. I often say to juries, 'When your verdict is recorded, it becomes part of the record of the oldest Supreme Court in the Commonwealth of Australia'. Never forget, the Supreme Court of Tasmania, as the Attorney well knows, is the oldest, conti nuous supreme court in the Commonwealth of Australia. So the verdict is of the jury; the trial is conducted by the judge who acts, as one of our judges says, as a sort of chairman of proceedings, rules on the evidence and is there to ensure that the prisoner at the Bar gets a fair trial.

At the end of the day, we put them on the bench because they are eminent lawyers and we have faith in them in our community to see that people get a fair trial. So the ultimate discretion for the judge to say to the Crown, 'That evidence is probably technically admissible but I think it would be unfair for you to use it'. By and large, the Attorney will agree with me, the Crown accepts that. It is now virtually not impossible to appeal against the discretion of a trial judge in the course of a trial but it virtually has become - the appeal judges say, 'Look, he was there' - I am only speaking in the masculine because at the moment we do not have a female Supreme Court justice; I am quite certain we will have, so when I am using the Acts Interpretation Act that masculine includes the feminine. Having said that, they say, 'Look, we won't substitute our judgment. We were not there. Learned trial judge heard the argument, he saw the witnesses, he conducted the voir dire and that is what he decided'. But having said that, I believe that the discretion of the trial judge in a criminal trial is the most precious safeguard of the lot. As this bill, which will soon be the act, reinforces that discretion then it is to be commended by those who seriously believe in the pursuit of justice.

I conclude: although it is part of a national code, this is the Evidence Bill 2001 Tasmania. It will become the Evidence Act 2001 of the State of Tasmania. As Ms Rigby pointed out to me - and I know in some of the other legislation, one bill in particular, one of my colleagues is going to raise the matter - the Tasmanian Parliament can amend - there is no bar on our amending, one would think that we would be wise if we were going to amend to amend only the sections which relate to Tasmania rather than the national. I think even technically, Attorney, the national part could be amended as part of the act but, having said that, I am not recommending it and I am indicating to the Attorney that I am not moving any amendments - but it could be done. That being so, Mr Deputy Speaker, what we have is really the best of both worlds. We have something which has been produced primarily under the aegis of the Commonwealth Attorney-General, the honourable Daryl Williams QC, but with attorneys-general from every State and their equivalent from the two Territories. That is right across the political spectrum so it has bipartisan, if not tripartisan, support. It will make it a lot easier and much more efficient in the administration of justice nationally. It also means that those who come from other States to appear in Tasmanian cases will have the benefit of an Evidence Act in this State which has the national and the State provisions. And similarly if Tasmanians go, as I went to Victoria and appeared in the Supreme Court of Victoria in a murder trial before His Honour Mr Justice Cummins, the Queen v. Grainger, which went for 17 days, that I will have the equivalent Victorian legislation, so that I will know what the national code is and I will also be able to say the Victorian sections, and the Victorian sections are a little bit different from ours, but there we are.

That is the best of a Federal system, is it not? We have the uniformity which can go right across the board, but we have individual State provisions. And across party lines I commend the Attorney and I commend his advisers, and I commend those who went before him in bringing this to fruition. It is a breakthrough. We will now have twenty-first century justice being administered with an appropriate vehicle, not, with respect, a legal T-Model Ford. My timing is probably not right, because I think Ford came in about 1920 and the Evidence Act was 1910, but you know what I am getting at, Mr Deputy Speaker.

Yes, the Opposition does support the legislation, commends the Attorney, commends Ms Rigby and the others who have worked so hard on it, and we will be supporting it.

Dr PATMORE (Bass - Attorney-General) - I thank the member for his contribution in this, and I want to say how pleased I am to have you in your role as shadow attorney-general, and the contribution you have made. Thank you also for pointing out a couple of omissions in my second reading speech. Of course I should have thanked the Parliamentary Draftsman and my departmental staff for the good job they have done. Thank you for reminding me on that. I was interested to hear your comments about reputation and the difficulties. One example could be if you had a murder trial and you were very worried about a person's prior conviction for rape over a period in front of the jury. It would be a terrible thing and would of course weigh heavily on your mind.

So with no further ado I thank the member for his contribution. I look forward to the points raised in committee. I reaffirm that if issues are raised I will do my best to take note and, if appropriate, to amend. If I cannot amend immediately, my usual position, as Mr Hodgman may not be aware, is to seek to have those amendments ready for the upper House, for the Legislative Council, so that if I give an undertaking they are dealt with in the Legislative Council and come back to this House. That is the way I have dealt with it. As I said, I am pleased to have brought this package of bills forward, but I also have to note that I cannot really claim ownership in relation to this. The wheels first started turning in 1987, and there have been a series of Attorneys since that time. I had the opportunity in 1991 when I was also Attorney-General to take the next step for uniform evidence, and I note it has taken yet another 10 years to get where we are, and in that space we had another two Attorneys-General. So I am pleased the matter has finally got to a stage where we have, I t hink, a very good package of bills and a very good national scheme.

Bill read the second time.