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Thursday, 9 March 1972
Page: 631

Senator GREENWOOD (VictoriaAttorneyGeneral) - I respond to the invitation from Senator Byrne. I appreciate his concern and I see where the considerations to which he has adverted lead him. But I must say that I am a little at a loss to know why those considerations to which he has adverted trouble him in the way they do. When I look at the English Act and the New South Wales Act I find that the provisions, which were introduced 7 or 8 years ago, state that documents which form part of a record relating to any trade or business compiled in the course of that trade or business may be admitted in evidence. 1 fail to see why those documents are acceptable as documents to be admitted in evidence whereas other documentary evidence is in some way unacceptable. That, to me, is a difficult proposition to accept unless one relies simply upon the basis that in England 7 or 8 years ago it was decided to introduce that provision in relation to commercial records. I imagine that the commercial records provision was introduced because it was Myers' case specifically which was desired to be overcome.

I think it is fair to say that the legislation with which we are concerned here is quite deliberately broader in its scope than the English provisions and the provisions in New South Wales. I am assured by my advisers that that was the way in which the committee consciously made this decision. I cannot speak as to what part Professor Cross played in this particular area; but, of course, be was consulted about this matter. One would suppose that if there were problems arising from the English experience they would have been adverted to; or, more accurately, if the problems arising from the English experience were such that they questioned the extension here proposed, then that would have been apparent in the end result which was forthcoming. 1 pose this somewhat rhetorically: Why should not direct oral evidence of a fact or of an opinion-

Senator Byrne - Or of an opinion?

Senator GREENWOOD - Yes.

Senator Byrne - That is very wideranging.

Senator GREENWOOD - I quite agree, but that is the scope of the provision, lt relates to direct oral evidence of a fact or of an opinion which would be admissible in a proceeding. That immediately cuts down the width of what otherwise would be referred to, because there are not many cases in which opinion evidence is admissible in a court proceeding - fewer in criminal matters than in civil matters. There are few people whom the law regards as sufficiently equipped to express their opinion in court and to have it admitted as evidence. That is a matter of practice.

Senator Byrne - In an insanity defence, for example, the opinions of medical men may be given.

Senator GREENWOOD - Professional people are in the position that they can have their opinions admitted as evidence. But, apart from professional people, there are not many instances, if any at all, to which we can point, of opinion evidence being receivable in the courts.

Senator Byrne - That could be critical evidence. Often it is critical evidence.

Senator GREENWOOD - It is critical evidence, of course, in a plea of insanity in a criminal case. Also, in probate or testator's family maintenance litigation in which the competency of the testator is involved it can be highly critical. But the point I make is simply this: If that sort of opinion evidence or evidence of fact could be admitted if the person was present to give it, are there any circumstances in which, if the person who made the statement in a document is not available because, for example, he has died, is outside Australia and cannot be found, is unfit by reason of old age or his bodily or mental condition to appear as a witness, or cannot with reasonable diligence be found, that document should be excluded both for the purposes of the prosecution, which might want to rely upon it, and for the purposes of the accused? One might suppose that a prosecution has available to it many more resources with which to overcome the problems in getting hold of the maker of a statement who is not available. The accused has fewer resources. If he had an opinion from a doctor as to the event or occurrence which is crucial or an opinion from a doctor as to his condition at a particular time, and he is not enti'Ied under any provision to have that statement introduced in evidence, he is the person who is penalised.

Senator Byrne - No. not necessarily. It might be a statement adverse to his personal claim and he might particularly want to test it.

Senator GREENWOOD - In adversary proceedings all that he is concerned about and, I think, all that we are concerned about in this area is that type of statement which a party, be it prosecution or accused, wishes to tender to advance or further the case it is concerned to prose cute. I just pose for consideration - it fs a matter of weighing the various factors in the balance, as Senator Byrne indicated before with regard to the possible prejudice to an accused person - that if these statements are not able to be introduced in evidence and to be assessed either by the judge or the jury we are shutting out relevant material which could make all the difference to the result and we are shutting it out because the maker of the statement is either dead or unable to be present. They are considerations which have to be borne in mind.

If one looks at the third edition of Professor Cross's book, one may find some passages which will be of some assistance to Senator Byrne, seeing that he drew some assistance from Professor Cross's joint work earlier. Talking of the Criminal Evidence Act of 1965, which was the one with which Senator Byrne was concerned, Professor Cross said:

The Act is presumably, only intended to be a palliative pending a complete overhaul of the law of evidence by the Law Refrom Committee and the Criminal Law Revision Committee respectively. It may, however, be helpful to note the points in which the Act is more liberal and more restricted than the Evidence Act 1938, its counterpart in civil cases.

If honourable senators will bear with me, I will read out the respects in which the Criminal Evidence Act is more liberal and those in which it is more restrictive. Dr Cross stated:

The Act of 1965 is more liberal than the Act of 1938 in five respects:

(1)   The fact that the information was supplied by an interested person does not render the record inadmissible as it would be under the Act of 1938 on account of s. 1 (3).

Senator Byrne - I may have read that from my edition.

Senator GREENWOOD - Yes. I shall not read the following passage elaborating on that. Dr Cross continues:

(2)   The record does not have to be, or form part of, a continuous record, and the information does not have to have been supplied to the person making the record directly by someone wilh personal knowledge of the facts recorded. Assum. . ing that the information contained in the records in Myer's Case was passed through a chain of informants, it would have to be excluded in civil proceedings owing to the wording of s. 1 (1) (i) (b) of the Act of 1938, although it would now be admissible in a criminal case.

(3)   There is no equivalent in the Act of 1965 to the provisions concerning the authentication of the document before it can be admissible under the Act of 1938.

(4)   The definition of 'document' is wider in the Act of 1965 than it is in the Act of 1938 and is apt to include a tape-recording or computer printout.

(5)   The Act of 1965 contains a useful provision, not included in the Act of 1938, for the case in which the person supplying the information, though readily available, cannot reasonably be expected to remember anything about the information supplied.

The author then goes on:

There are two respects in which the provisions for the reception of hearsay under the Act of 1965 are more restricted than those of the Act of 1938:

(1)   The Act of 1965 is confined to records, whereas Idlers, proofs of evidence and all manner of documents may be received under the Act of 1938.

(2)   The Act of 1965 is confined to records relating to any trade or business and compiled in the course of that trade or business'.

After a passage which 1 shall not read he goes on: lt remains to be seen how the terms 'trade or business' will be construed by the courts, but it is unlikely that they will be. held to permit the reception of n doctor's records, or regimental records under the Act of 1965. A soldier's regimental records will continue to be inadmissible in criminal proceedings as evidence of the fact that he was abroad at a particular time, although they arc admissible for such a purpose under the Evidence Act, 1938.

In the final conclusion Dr Cross states:

There may well be cogent reasons against a complete assimilation of the law of evidence in criminal and civil cases, but there is little, if any, rhyme or reason in the distinctions which have bien mentioned in this section.

With respect, 1 think that the distinctions which appear to have attracted the interest of Senator Byrne are distinctions which have little rhyme Or reason. I must say that I think that if one is prepared to admit as records in a criminal case certain documents relating to business which is being carried on, it is hard to see on what logical principle one can exclude documentary evidence of the character of doctors' opinions or of facts related by doctors which an accused person may want to rely on and tender in evidence on his own behalf, just as a prosecutor may want to tender them. We must recognise that this legislation is a step forward. As Dr Cross said, he would presume that the English Act is not the last word on the subject and providing that we have the safeguards which I believe we have, then we should not be over cautious in taking steps forward. As Senator Byrne said during the second reading debate, in Australia we have been slow in taking steps forward. If we have the precaution of this legislation we should not be similarly hesitant in this field.

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