The rules of evidence help courts determine proceedings fairly, justly and quickly. They are an integral part of the rule of law.
Over a decade ago the Law Commission recommended that Parliament codify the rules of evidence in one accessible statute. The result was the Evidence Act 2006. The Act substantially, though not completely, codified the law of evidence.
Parliament also decided the Commission should review the Act every five years to make sure the new legislative scheme was working well.
Our first review in 2013 found the Act to be working well. But we made some recommendations for change, most of which Parliament enacted in the Evidence Amendment Act 2016.
Our second review started a year ago. This time we are able to examine how the Act has operated over the past ten years.
Our preliminary view is that the Act is still working well.
Appellate courts, lawyers and commentators have, however, identified some specific issues with the Act.
We will publish an Issues Paper next month, which will set out the issues, explore possible options for reform, and seek comments from the public. The issues include:
- the use of conviction evidence;
- evidence of complainants’ sexual experience;
- veracity and propensity evidence;
- improperly obtained evidence;
- the conduct of expert witnesses;
- judicial directions;
- unreliable statements; and
- the right to silence.
We are also considering the rules of evidence relating to sexual and family violence, which includes evidence about the sexual experience of complainants and alternative ways of giving evidence.
People should provide submissions and comments on our Issues Paper by Friday, 15 June 2018. The Commission will make its recommendations to the Government in February 2019.