Introduction

[4-0000] Interpretation

The Evidence Act 1995 deals with the admissibility of evidence in Ch 3 of the legislation. An introductory note to Ch 3 outlines the scheme of the statute by a sequential series of questions and answers with cross-references to the parts of the statute where those issues are dealt with. That sequence of questions and answers is reproduced here, together with further cross-references to the chapters of this Bench Book where those issues are annotated.

Evidence Act

Bench Book

Is the evidence relevant?

Pt 3.1

[4-0200] ff

If “No”, it is not admissible

If “Yes”, does the hearsay rule apply?

Pt 3.2, plus Pt 3.4 (admissions), Pt 3.8 (character evidence)

[4-0300] ff

If “Yes”, it is not admissible

If “No”, does the opinion rule apply?

Pt 3.3, plus Pt 3.4 (admissions), Pt 3.8 (character evidence).

[4-0600] ff

If “Yes”, it is not admissible

If “No”, does the evidence contravene the rule about evidence of judgments and convictions?

Pt 3.5

[4-1000] ff

If “Yes”, it is not admissible

If “No”, does the tendency rule or the coincidence rule apply?

Pt 3.6, plus Pt 3.8 (character evidence).

[4-1100] ff

If “Yes”, it is not admissible

If “No”, does the credibility rule apply?

Pt 3.7, plus Pt 3.8 (character evidence).

[4-1200] ff, plus [4-1300] ff

If “Yes”, it is not admissible

If “No”, does the evidence contravene the rules about identification evidence?

Pt 3.9

If “Yes”, it is not admissible

If “No”, does the privilege apply?

Pt 3.10

[4-1500] ff

If “Yes”, it is not admissible

If “No”, should the discretion to exclude the evidence be exercised?

Pt 3.11

[4-1600]

If “Yes”, it is not admissible

If “No”, the evidence is admissible

 

The provisions of the Evidence Act apply to both civil and criminal proceedings. This chapter of the Civil Trials Bench Book has been designed for use in both civil and criminal proceedings, so that individual judges may, if they so wish, keep the chapter in a separate folder for that purpose.

The Evidence Act has made substantial changes to the law of evidence in New South Wales: Papakosmas v R (1999) 196 CLR 297 at [10], [46], [88]. Where it makes an express provision different from the common law, it is the language of the statute which determines the issue in question, and the meaning and effect of the language of the statute is not to be determined so as to conform with the pre-existing common law: Papakosmas v R at [10], [88]; R v Stewart (2001) 52 NSWLR 301 at [3], [70]. The pre-existing common law is of assistance in interpreting the statute where it has adopted formulas well known to the common law: see, for example, R v BD (1997) 94 A Crim R 131 at 139, where the cognate phrases “unfairly prejudicial” and “unfair prejudice” in ss 135–137 in Pt 3.11 were interpreted in accordance with a number of decisions concerning the common law, in a manner approved by the High Court in Papakosmas v R at [29], [91].