Impact of the Uniform Evidence Act 1995 (NSW) (“the Act”)

(i)            the admissibility of implied assertions 

Implied assertions are of two kinds - those implied from statements not intended to assert a particular fact, and those implied from conduct not intended to assert a particular fact.[1]

Previous Common Law Position

The position of the common law prior to Walton v The Queen (1989) 166 CLR 283 (“Walton”) was that the hearsay rule, whilst strict in its application, did not extend to implied assertions. In Walton, the High Court moved to the position that the hearsay rule extended to implied assertions and favouring a flexible, reliability based approach to the admissibility of implied hearsay. In Bannon v The Queen (1995) 185 CLR 1, the High Court affirmed the applicability of the hearsay rule to implied assertions, but returned to a strict approach to admissibility.

The Act

In contrast, the Act restricts the application of the hearsay rule to express assertions, with admissibility being further extended by statutory exceptions to the rule.

The essential difference with the Act is it does not extend to implied assertions. Section 59(1) and (2) of the Act states:

“The hearsay rule—exclusion of hearsay evidence

(1)       Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

(2)       Such a fact is in this Part referred to as an asserted fact.” 

The term ‘previous representation’ is defined in the dictionary of the Act meaning “a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced”.

The Act provides for a number of exceptions to the operation of the hearsay rule. These include:

  • section 65 – admission of first hand oral or documentary hearsay where the maker of the representation is unavailable; and
  • section 66 – admission of first hand oral or documentary hearsay where the maker of the representation is available.

The Act seeks to limit the operation of the hearsay rule to express assertions and at the same time provide wide ranging exceptions in cases where the declarant is unavailable, including a reliability based exception contained in s 65(2)(c). The approach of the courts to these exceptions has been quite cautious, yet they provide flexibility in situations where the case for admissibility is particularly strong.

(ii)          the right to cross-examine a hostile/unfavourable witness

An unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves an opposite fact. A hostile witness is one who is not desirous of telling the truth at the instance of the party calling the witness, ie one “unwilling, if called by a party who cannot ask him leading questions, to tell the truth and the whole truth in answer to non-leading questions”.[2]

Previous Common Law Position

The common law test of determining whether a witness is unfavourable was stated in  McLellan v Bowyer (1961) 106 CLR 95, that is, the witness being ‘unwilling to tell the whole truth for the advancement of justice’.

The Act 

Section 38 of the Act deals with unfavourable witnesses. The significant factors of section 38 are that firstly, it relates to the circumstances in which cross-examination will be allowed and secondly, the use that may be made of evidence obtained from the cross-examination.

The common law test of 'unwilling to tell the whole truth for the advancement of justice' is significantly modified by the Act. Section 38 contains no requirement that the witness be hostile or adverse and there is no need to seek a declaration that the witness is such. It is enough with leave of the Court that the witness is unfavourable, is not making a genuine attempt to give evidence, or has made a prior inconsistent statement. It is evident that ‘unfavourable’ imposes a less burdensome requirement than ‘hostile’. In R v Le, McLellan J stated: 

“The word 'unfavourable' should be given a broad meaning thereby ensuring that in the course of any criminal trial the Court would not be denied evidence as to any relevant issue and would not be denied the opportunity forth at evidence to be appropriately tested."[3]

Accordingly, the Act provides for a wider and utilitarian approach than the common law in relation to unfavourable and hostile witnesses. 

(iii)        the privilege against self incrimination

Previous Common Law Position

The rule of privilege against self incrimination is “no one is bound to answer any question or produce any document if the answer or the document would have a tendency to expose that person to the imposition of a civil penalty or to a conviction for a crime.”[4]

In Azzopardi v R (2001) 205 CLR 50 McHugh J dealt with the historical roots of the privilege at [119] to [163].

The Act

The common law rule has been both preserved and also modified to varying degrees by the Act. 

Under the Act a witness can claim the privilege of self-incrimination unless the court finds that the interest of justice require evidence to be given. The modification frequently enables the court to require the witness to answer the questions once it has granted a certificate of immunity to the witness that would prevent the evidence being used against the witness in any proceedings. This is dealt with in section 128 of the Act. Exceptions are dealt with in section 128A of the Act.

Section 128 of the Act does not necessarily improve the common law. In R v Lodhi [2006] NSWSC 638 Whealy J raised with caution the following issues in respect of section 128, that is, the certificate does not give absolute protection[5] and the reliability of the evidence given by the witness[6]. It was held that the witness was not required to give evidence at the trial. However, in all the circumstances, it is submitted the Act improves the means to obtaining an administration of justice.

[1] J D Heydon, Cross on Evidence (8th Australian ed, 2010) [31035] at 1082.

[2] Ibid at [17370] at 587.

[3] [2001] NSWSC 174 (Unreported, 2 March 2001) at [15].

[4] Id 7 at [25065] at 851.

[5] R v Lodhi [2006] NSWSC 638 at [55].

[6] Ibid at [56].

If you seek further legal advice on this issue or need a lawyer, please do not hesitate to contact John Fasha by email to or by telephone (02) 9610 6677 or 0450 217 901.