The Subtleties and Complexities of the Evidence Acts, and the Role of Intermediate Courts of Appeal
Australian Bar Review, Vol. 41, No. 1, pp. 13-26, 2015
14 Pages Posted: 19 Feb 2016 Last revised: 25 Nov 2020
Date Written: 2015
Abstract
Recent empirical work confirms one’s impression that much of the present work of intermediate courts of appeal, especially courts of criminal appeal, continues to involve the working out of the Evidence Acts first introduced by Commonwealth and New South Wales statutes twenty years ago. This article identifies reasons for that phenomenon. Its essential contention is that the legislation is much more subtle and complex than is often appreciated. In significant respects the legislation is not uniform. Nor is it a code. It applies in different ways to different Australian courts. But the main source of subtlety and complexity is the relationship with other statutes and with the existing body of judge-made law.
Keywords: Evidence, codification, uniform evidence acts, comity, appellate courts, relationship between statute and common law, Longman discretion, general fairness discretion
JEL Classification: K10, K30, K40
Suggested Citation: Suggested Citation