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.
Critical Perspectives on the Uniform Evidence Law
AUD $165.00 gst included
About the Contributors
Table of Cases
Table of Statutes
Andrew Roberts and Jeremy Gans
1. The Uniform Evidence Law in the Islands
2. Adoption of the Uniform Evidence Legislation: So Far and No Further?
3. Uniform Evidence Law and the Common Law
4. Probative Value, Reliability, and Rationality
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
8. Judicial Warnings About Unreliable Evidence: Why, When and How?
9. ‘Tendency Evidence’ and ‘Coincidence Evidence’ in the Criminal Trial: What’s the Difference?
10. Confessions and Admissions Under the UEL
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
As the editors point out at the outset, this slim volume is the only known collection of essays on the Uniform Evidence Law … Much has been written and said about the UEL in the 22 years since its inception, yet none of it has been collected in a single book. In that sense, this book is an eagerly awaited contribution to contemporary evidence law in Australia.
As always, the quality of a book’s content will depend upon the quality of its authors. Who then are the contributors to this volume? They are academics and commentators of significant excellence and experience, and who are among the most important practitioners, researchers and teachers in the discipline of evidence in Australia. …
The volume is notable not only for its content, but also its editing, for which the editors are to be congratulated. Thirteen short, elegant chapters follow the excellent introduction. Eight of the 13 are devoted to topics which have confounded students, practitioners and judges for decades: opinion evidence, tendency evidence, confessions and admissions, and identification evidence among them. …
[W]e found the book both easy to read and fascinating. We hope it does not take another 20 years for such a volume to appear.
Richard Weinstein SC & Alicia Lyons, Australian Law Journal, 2018, 92
In the volume of essays Critical Perspectives on the Uniform Evidence Law, editors Andrew Roberts and Jeremy Gans have assembled eminent scholars to reflect upon the successes and failures of this ongoing project. The first of the Uniform Evidence Laws (‘UEL’) were enacted by the Commonwealth and New South Wales in 1995. Seven years later, Tasmania followed suit and another seven years after that, Victoria passed its version of the UEL. Both the Australian Capital Territory (‘ACT’) and the Northern Territory have enacted versions of the uniform legislation, as has Norfolk Island. As would be obvious from this list, the project is still ongoing because Queensland, South Australia and Western Australia have yet to enact UEL legislation. What may be less obvious is that uniformity itself remains elusive among the states and territories that have adopted the UEL. As described by the book’s editors, ‘[t]he Australian statutes have never been entirely uniform and recent years have seen local amendments that have increased the divergence of the main Australian jurisdictions.’
This book of critical evaluations of the UEL is, therefore, timely and important — one might even say critical — at a time where specific consideration of the laws of evidence is increasingly needed given that judicially created complexity is adding to many complexities inherent in the laws. The book has been published in the midst of the handing down and continued consideration of several major, and occasionally high-profile, High Court of Australia decisions on the UEL and the principles for interpreting and applying its provisions. These decisions have involved unsettled and developing areas of the law such as expert opinion evidence and the standards surrounding inferences that can be drawn from the absence of evidence. Other decisions have resolved disparities between at least two of the main Australian UEL jurisdictions, New South Wales and Victoria, on the issues of the correct standard for the assessment of probative value16 and the significant probative value test for tendency and coincidence evidence. In addition to resolving the disparities, these decisions also attempted to clarify standards for the application of the principles underlying the law itself. How successful these attempts have been remains an open question, further pointing to the need for a book such as this one to provoke conversation, evaluation and, perhaps, reform.
James D Metzger, Sydney Law Review, Vol 40:147 2018
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