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Preferences between Northern Territory approach and the approach adopted in the Evidence Act 2008 (Vic) With reference to the policy considerations underlying s 19 of the Evidence (National Uniform Legislation) Act (NT)

 

Introduction

The Uniform Evidence Act (UEA) section 12 provides that every person in the commonwealth is presumed competent to provide evidence unless a court finds them incompetent to do so. In section 19, the act provides for competency and compellability of witnesses with the aim of giving prosecution evidence in criminal cases. The UEA differs among the three jurisdictions of Evidence (National Uniform Legislation) Act (NT), the Victoria Evidence Act 2008[1], and the New South Wales. This essay will focus on the UEA in the Northern Territory and in Victoria with the aim of making a conclusion on the most preferred approach between the two. This will be done by discussing the approach of the UEA in the context of the two jurisdictions by making references to relevant literature.

Under the UEA section 19, provisions that govern competence are made and many of the examination of the section have been focused on whether the UEA requires amendment[2]. The Australian Law Reform Commission on the provision that govern compellability is confined to the scope and appropriateness of the definition ‘de facto spouse’. This definition affects the rights of a person whose relationship is in de facto with an accused in a criminal case and limits their objection to being required to provide evidence[3].

 

S 19 of the Evidence (National Uniform Legislation) Act (NT)

Section 19 in the Evidence Act of Northern Territory provides the rules of competence and compellability for defendants in criminal case as well as for other associated defendant or defendants. Associated defendant is defined as an individual who a prosecution has been instituted against but it is not yet completed or terminated and the proceedings are for an offence that is due to a relation to the events as those for which an offence for which the defendant is being prosecuted or for an offence that is related or connected to the offence to which the defendant is being prosecuted[4].

The clause states that a defendant is not competent to give evidence for the prosecution side and the associated defendant cannot be compelled to provide evidenced for or against a defendant in proceeding of a criminal nature. However, this doesn’t hold if the associated defendant is being tried in separation with the defendant. If the latter applies, then the clause requires the court to ensure that the associated defendant is made aware of the clause if he or she is being tried jointly with the defendant[5].

Currently, the Evidence (National Uniform Legislation) Act 2011 (NT) S 19 states under compellability of spouses and others in certain criminal proceedings doesn’t apply that, section 18 doesn’t apply in offences that are; (a) against section 201,202, 203,228,229,240 or 246 of the care and protection of the children act, (b) against a provision in part V or VI of the criminal code and the offender is a person aged 16 years and below, (c) offence is a DVO contravention offences as is defined under the family violence act, (d) against section 43B1 or a provision in part VIII of the criminal code in relation to offence mentioned in subsection (a) and (b) above[6]. Section 19 of the act bears a note that the section is different from section 19 of the Commonwealth Act, Victorian Act, and the NSW Act with emphasis added. Nevertheless, after the Evidence (National Uniform Legislation) Amendment Bill 2012 (NT) starts, s 19 will be amended to state that section 18 doesn’t apply in proceedings for any of the following offences; (b) offence against a law of the territory where the alleged victim is  a person under 16 years of age with the other parts typically remaining unchanged.

The amendment will change the focus on the age of the alleged victim and not the age of the offender. Therefore this will do away with the absurdity of the situation that close relatives of an offender who is under the age of 16 years are unable t apply to be excised from giving evidence. The bill with therefore bring the Evidence (National Uniform Legislation) Act 2011 (NT) in line with the Evidence Act 1995 (Cth) and s 19 of the Evidence Act 2011 (ACT)[7].

 

Evidence Act 2008 (Vic)

According to the Victorian Law reform commission[8] there should not be any circumstances in which an objection can be taken by a family members to giving evidence in criminal proceedings and the exercise of the power to excuse a witness should be determined in line with section 18. Just like the Evidence (National Uniform Legislation) Act (NT), section 18 of the Evidence Act 2008 stipulates consideration under which a witness can be granted exemption to giving evidence. The commission believes that if section 18 was to be applied sensibly, then it would give adequate means for ensuring that witnesses are required to give evidence in suited circumstances and excused if there is a greater concern overriding the situation.

 

Comparison the Evidence Act 2008 and the Evidence (National Uniform Legislation) Act (NT)

The clause on compellability of spouses and others in certain criminal proceedings generally spouses, de factor partners, parents, and children of defendants have been granted the power to object to being required to give evidence for the prosecution. In case the court decides to compel the objecting witness, the considerations that the court may take into consideration are; the gravity of the offence, the importance of the evidence to be given, the relationship that exists between the witness and the defendant, and the confidentiality of the matter that may be disclosed. Qualification of an objection is made if there is a likelihood that giving the evidence would cause harm to a person or their relationship with the defendant and the extent of this harm outweighs the desire for receiving this evidence[9]. This is considered to be a highly critical balancing test and it requires reliance on judicial discretion.

The above approach is different from the current NT law as far as the competence and compellability issues for certain criminal proceedings are concerned. Section 19 of the Evidence Act husbands and wives are compellable to give evidence in criminal proceedings[10]. According to Freckelton[11] the Evidence (National Uniform Legislation) Amendment Bill 2012 (NT) was meant to ensure that in cases of a criminal nature, where the alleged victim is below the age of 16 years, a close relative of the defendant cannot make an application to be excused from giving evidence. Even though spouses, de facto partners, parents and children of a defendant may object to being required to give evidence for the prosecution side under s 18 of the Evidence (National Uniform Legislation) Act 2011 (NT), s 19 excludes the application of s 18 is certain situations for example domestic violence.

The Victorian Evidence Act differs in approach from the Northern Territory Evidence Act in several issues pertaining competence and compellability of certain classes of witnesses. While the Evidence Act provides that a defendant in criminal proceedings is incompetent to stand as a witness for the prosecution, the Northern Territory Evidence Act provides that a defendant in not liable to being called if the defendant is facing charges for an indictable offence[12]. Regardless of whether it’s a summary or indictable prosecution, the issues of a defendant standing as a witness to give evidence for the prosecution only practically arises in cases where there is more than one defendant. Specifically, the Evidence Act 2008 provided that an associated defendant cannot be compelled to give evidence against a defendant unless they are being separately tried[13].

The Evidence Act 2008 outlines a procedure for spouses, de facto partner, parent, and/or child of a defendant who has been called to stand as a witness for the prosecution and objects to giving the evidence. In such a case, the court examines the harm that might be caused to the person giving the evidence or their relationship with the defendant and if the harm is found to outweigh the desirability of the evidence to be given, the court may direct that the person be required not to give the evidence[14]. The Evidence Act 2008 has made specific offences that are excluded from this provision for example, for domestic violence related offences and offences against children. On the other hand, the Northern Territory Evidence Act does not have such comparable provisions as spouses are considered to be competent and compellable witnesses in all situations and circumstances[15]. In addition the Evidence Act in the Northern Territory jurisdiction doesn’t have specific cover for witnesses who may be parents or children of the defendant.

 

Determination of preferred approach

The issue of competence according to Freckelton and Selby[16] arises in cases where the witness is a child or has some form of disability. The characteristics that might lead to a party seeking to impugn the competence of a person as a witness include sensory or physical disability, age, brain injury, mental illness, and cognitive or intellectual disability. The rational for stringent rules regarding competence are a reflection of the stereotypical views that children are unreliable witnesses[17]. Evidence by children is considered to be ‘suspect’ because children are considered to have less power of memory and observation and are more susceptible to a make-believe kind of world[18]. This is just one of the reasons as to why a blanket competence and compellable approach cannot be adopted.

The commencing point of the UEA is the relevance of the evidence and this bears a general inclusionary rule that relevant evidence is admissible in court proceedings. As per section 55, evidence is relevant if when accepted, it “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”[19] As stated by Odgers[20] the UEA in general is concerned with ensuring that the best available evidence is available for the fact-finding tribunal be it a court, a jury, or other justice organ recognized in the various legal systems.

In conclusion, for an approach to be considered preferable it has to satisfy the fact that, the best available evidence should be available for any fact-finding tribunal and at the same time factor in the fact that, not all witnesses can be compelled to stand as a witness based on the characteristics stated above. Based on this criterion, it is clear that there should not be a clear blanket approach that requires witnesses to be compelled to stand as witnesses as not every person is a competent witness. As a result, the Evidence (National Uniform Legislation) Act (NT) is considered to be the preferred approach over the Victorian Evidence Act.

 

References

  1. Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1902 and Related Legislation, ALRC 92 (2001), [6.45]–[6.47].
  2. Australian Law Reform Commission, Uniform Evidence Law Report, ALRC 102 (2005), ch 1.
  3. Australian Law Reform Commission, Uniform Evidence Law, Report No 102, (2006), published jointly with the New South Wales Law Reform Commission, Report No 112, (2005) and the Victorian Law Reform Commission, Final Report, (2006)
  4. FEARIS, E., AUSTRALIAN CRIME COMMISSION V STODDART: THE END OF COMMON LAW SPOUSAL PRIVILEGE, QUT Law & Justice Journal, (2012), Volume 12, Number 2, 97-111
  5. Freckelton I. and Selby H., Expert Evidence: Law, Practice, Procedure and Advocacy, 3rd edn, Law Book Co, (2004)
  6. Freckelton, Ian. “Rules of evidence.”Legaldate 16, no. 2 (May 2004): 5-7
  7. Ligertwood, A. & Edmond, G., Australian evidence: A principled approach to the common law and the uniform acts (Lexis Nexis Butterworths, 5th ed, 2010) [8.197]
  8. Odgers S.,Uniform Evidence Law (6th ed, 2004), [1.2.640].
  9. Odgers, S., Uniform Evidence Law(8th ed, 2009) and Uniform Evidence Law in Victoria (2010) [1.2.20]–[1.2.40].
  10. Talwar V,Lee K, Bala N, Lindsay RC., ‘Children’s Conceptual Knowledge of Lying and its Relation to their Actual Behaviours: Implications for Court Competence Examinations’ (2002) 4 Law and Human Behaviour 395, 396.

 

[1] E. Fearis, ‘Australian crime commission v stoddart: the end of common law spousal privilege’ (2012), QUT Law & Justice Journal, Volume 12, Number 2, 97

[2] Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1902 and Related Legislation, ALRC 92 (2001), [6.45]–[6.47].

[3] Ibid

[4] Ibid

[5] Australian Law Reform Commission, Uniform Evidence Law Report, ALRC 102 (2005), ch 1.

[6] Australian Law Reform Commission, Uniform Evidence Law Report, ALRC 102 (2005)

[7] FEARIS, E., Australian crime commission v stoddart: the end of common law spousal privilege, QUT Law & Justice Journal, (2012), Volume 12, Number 2, 98

[8] VLRC, Implementing the Uniform Evidence Act, Report, 2006

[9] Ibid

[10] Ibid

[11] Freckelton, Ian. “Rules of evidence.” Legaldate 16, no. 2 (May 2004): 5-7

[12] Odgers, S., Uniform Evidence Law (8th Ed, 2009) and Uniform Evidence Law in Victoria (2010) [1.2.20]–[1.2.40].

[13] Ibid

[14] Ligertwood, A. & Edmond, G., Australian evidence: A principled approach to the common law and the uniform acts (Lexis Nexis Butterworths, 5th ed, 2010) [8.197]

[15] Australian Law Reform Commission, Uniform Evidence Law, Report No 102, (2006), published jointly with the New South Wales Law Reform Commission, Report No 112, (2005) and the Victorian Law Reform Commission, Final Report, (2006)

[16] Expert Evidence: Law, Practice, Procedure and Advocacy, 3rd edn, Law Book Co, (2004)

[17] Talwar V, Lee K, Bala N, Lindsay RC., ‘Children’s Conceptual Knowledge of Lying and its Relation to their Actual Behaviours: Implications for Court Competence Examinations’ (2002) 4 Law and Human Behaviour 395, 396.

[18] Ibid

[19] Odgers, S., Uniform Evidence Law (8th ed, 2009) and Uniform Evidence Law in Victoria (2010) [1.2.20]–[1.2.40]

[20] Uniform Evidence Law (6th Ed, 2004), [1.2.640].


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