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Critical Perspectives on the Uniform Evidence Law

Critical Perspectives on the Uniform Evidence Law

Edited by Andrew Roberts and Jeremy Gans


Critical Perspectives on the Uniform Evidence Law comprises a collection of writing by the leading academics and practitioners in the field. It provides sustained critical analysis of a range of issues, including the implications of adoption of the legislation in overseas jurisdictions and the obstacles to enactment in the ‘hold-out’ States of South Australia, Queensland and Western Australia. The contributions explore the UEL’s relationship with the common law and provide critical analysis of the operation of the law in relation to: assessment of probative value; tendency and coincidence reasoning; the admissibility of complaint evidence in sexual offence trials; judicial warnings in respect of unreliable evidence; establishing the expertise of those providing expert opinion evidence; admissions and confessions; and identification evidence. The book also provides comparative analysis of the UEL’s credibility provisions and its approach to the admissibility of improperly obtained evidence.


About the Contributors
Table of Cases
Table of Statutes

              Andrew Roberts and Jeremy Gans

1.   The Uniform Evidence Law in the Islands
              Jeremy Gans

2.   Adoption of the Uniform Evidence Legislation: So Far and No Further?
              Andrew Hemming

3.   Uniform Evidence Law and the Common Law
              Stephen Odgers

4.   Probative Value, Reliability, and Rationality
              Andrew Roberts

5.   Knowing Experts? Section 79, Forensic Science Evidence and the Limits of ‘Training, Study or Experience’
              Gary Edmond and Kristy A Martire

6.   The Application of the Uniform Evidence Law to Delay in Child Sexual Assault Trials
              Annie Cossins and Jane Goodman-Delahunty

7.   The Admissibility of Complaint Evidence: Focusing on Time is a Waste of Time
              Miiko Kumar

8.   Judicial Warnings About Unreliable Evidence: Why, When and How?
              John Anderson

9.   ‘Tendency Evidence’ and ‘Coincidence Evidence’ in the Criminal Trial: What’s the Difference?
              David Hamer

10.  Confessions and Admissions Under the UEL
              Mark Weinberg

11.  Updating Beliefs: Rethinking the Regulation of Identification Evidence Under the UEL
              Mehera San Roque

12.  A Question of ‘Desirability’: Balancing and Improperly Obtained Evidence in Comparative Perspective
              Andrew L-T Choo

13.  Assessing a Person’s Truthfulness on Either Side of the Tasman: Comparing Concepts of Credibility and Veracity
              Elisabeth McDonald



Andrew Roberts and Jeremy Gans, Critical Perspectives on the Uniform Evidence Law is a slim hard covered book that feels light in the hand but it still packs the weighty punch needed for investigating this area of the law. Within this elegant volume the heavy weights of academia and the courts enlighten us on specific, controversial and often, misunderstood areas of the Uniform Evidence Law. The wisdom and clarity that these pre-eminent authors bring to their topics makes the content come to life. These authoritative authors compel our interest and reward our reading with focused enlightenment not easily found in other investigations of Uniform Evidence Law.
         These essays are penned by the finest minds and cover the essential, the difficult and the most controversial areas of Uniform Evidence Law. The authors are relevant and vital critics of their chosen topic. Allowing their critical perspectives to cross easily from the page and into our inquiring minds. From confessions and admissions, to tendency and coincidence we are invited to explore another perspective, a differing and more illuminating view is offered for our reflection. … This book provides solid, reliable and insightful knowledge of Uniform Evidence Law. It is well written and engaging and is recommended as a fine read. Read full review...

Vivienne Gale, Law Letter, The Law Society of Tasmania, Summer 2017

In my view, uniform evidence law (UEL) is invaluable. However, this book makes compelling arguments in relation to the downfalls of the UEL, including the stagnated status of the UEL, noting the 'hold out' States of Queensland, South Australia and Western Australia. It makes a valuable suggestion to extend the Commonwealth Evidence Act to State courts exercising federal jurisdiction so that all federal criminal trials are heard under the UEL legislation.
         It is critical of expert opinion evidence in the UEL and concludes that training and study may not
be sufficient in its own right to demonstrate expert performance.
It is also critical of the UEL's ability to delay child sexual assault cases and the 'fresh in the memory' requirements for complainant's evidence (noting the courts emphasis on time in those cases).
         The book highlights a need for a guide for judicial officers in the giving of warnings, direction and information about unreliable evidence and criticises the differential treatment of tendency and coincidence evidence.
         It suggests rethinking identification evidence, and is critical of ID parades and witnesses who are con dent, honest and wrong. It considers the danger of identifying the accused from Facebook photographs (through the example of a woman who came forward with claims of sexual assault after images of Jill Meagher's attacker were posted online). It indicates through case law examples that there is a gap in the legislation, as the treatment of identification evidence does not allow for voice identification evidence.
         I agree that it is necessary to be critical of the UEL and ensure that the courts make decisions that are current and relevant to our society (particularly where there are advancements in technology and capabilities). However, the authors of this book are overly critical of the way in which the courts have interpreted the UEL's provisions.
         Lastly I note that the book also compares the UEL to the Caribbean, South Pacific and the Tasman's evidence law framework - which I found surprising and enlightening.

Rebecca Wheeler, Ethos, ACT Law Society, December 2017

The contributors to this book are respected academics and through the various essays the book covers most areas of evidence law giving a good perspective on the use of the various provisions in day-to-day trial practice and, more generally, the evolution of evidence law in Australia.
         From dealing with the historical origins of the Uniform Evidence Law to detailed analysis of the theoretical underpinnings of the law and arguments for further reform to particular provisions, this collection of scholarly essays provides deep insight into the concepts and rationale behind the Uniform Evidence Law’s provisions.
         While the focus of the various chapters can be somewhat narrow, it does not prevent the book from providing an examination of issues that is useful in a practical context. To list just some examples, there is a discussion of fingerprint analysis and other forensic procedures in the context of the operation of the opinion evidence provisions, a discussion of coincidence evidence in the context of spousal homicide cases, and a very detailed analysis of the use of judicial warnings in relation to unreliable testimony. The other articles are likewise informative and analytical.
         Several of the articles argue strongly for the need to reform the law, focusing as they do on confusion or inconsistency which has become apparent, while others have a stronger focus on explaining the various provisions in their operation either alone or in conjunction with pre-existing common law. In both cases there is much to commend.

Douglas J James, InPrint, Law Institute Journal Victoria, November 2017


Published 29 May 2017
Publisher The Federation Press
ISBN 9781760021368
Australian RRP $165.00
International Price $150.00
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Law - Evidence
Law - Criminal Law & Procedure

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