Inadmissible Evidence Law In Australia

Hearsay

Hearsay is a type of evidence in which a person reports information that they have heard from someone else. This information is generally not admissible because the original declarant is not present to be cross-examined. For example, if a witness testifies that they heard a third party say the defendant committed a crime, it would likely be considered hearsay and inadmissible.

Hearsay evidence, under the Evidence Act in New South Wales, refers to statements made by a person who is not a witness in the proceeding and is offered to prove the truth of the matter asserted in the statement. In simpler terms, it involves presenting in court a statement made by someone who is not testifying as a witness, in order to prove the truth of what was said.

In NSW, the Evidence Act 1995 governs the rules of evidence in legal proceedings, including a criminal case court proceeding. According to the Evidence Act, hearsay evidence is generally not admissible unless it falls under one of the recognised exceptions.

The primary rationale behind the hearsay rule against hearsay is to ensure that evidence presented in court is reliable and subject to cross-examination. When a statement is made out of court and not subject to cross-examination, there is a higher risk of inaccuracy or manipulation.

Illegally Obtained Evidence

Evidence that is obtained in violation of a person’s constitutional rights, such as evidence obtained without a valid search warrant, may be considered inadmissible. This is to deter the NSW Police from engaging in unlawful practices.

Section 138(1) stipulates that, in both civil and criminal proceedings, evidence procured through improper or illegal means “shall not be accepted unless the benefits of admitting such evidence outweigh the drawbacks of doing so,” considering the manner in which it was acquired.

While Section 138 does not explicitly elucidate what constitutes evidence obtained “improperly,” Section 138(2) outlines specific situations where an admission will be deemed to have been acquired in such a manner. Furthermore, Section 139 asserts that the failure of an investigating official to caution a suspect prior to questioning will result in the statement being classified as improperly obtained.

Privileged Communications

Communications that are protected by privilege, such as those between a lawyer and client or spouses, are generally considered inadmissible in court. This is to encourage open and honest communication within these relationships.

The Commonwealth of Australia, along with five of its eight states and territories, has established legislation pertaining to legal professional privilege. These laws, which are largely uniform and align with common law principles, safeguard specific aspects of legal communication.

Both common law and statutory provisions recognise two distinct forms of privilege: legal professional privilege and litigation privilege.

Legal advice privilege shields “confidential communications” exchanged between a client and their lawyer. This extends to confidential documents prepared by a client, lawyer, or a third party, provided they were created for the primary purpose of providing legal advice.

Litigation privilege safeguards confidential communications and documents created with the primary intent of being used in actual or anticipated legal proceedings.

The scope of litigation privilege encompasses communications between a client and their lawyer, and in certain instances, it may also cover specific categories of communications between an lawyer and a third party.

Opinion Evidence

In most cases, witnesses are not allowed to offer their opinions on the guilt or innocence of a defendant. Expert witnesses, however, may provide opinions within their area of expertise.

Opinion evidence, under the Evidence Act in New South Wales, refers to evidence that expresses a witness’s opinion or inference about a fact in issue, rather than stating the facts themselves. This type of evidence involves a witness providing their personal assessment, belief, or judgment on a matter.

The general rule in NSW, as outlined in Section 76 of the Evidence Act 1995, is that witnesses should provide factual evidence based on what they directly observed or experienced, rather than offering their opinions. This is because opinions can be subjective and may not be as reliable as factual evidence.