Upcoming Changes to the Evidence Act: What We Know So Far

Changes to the Evidence Act

The rules of Evidence are of great importance in civil litigation and criminal hearings. They inform the procedure, protect complainants and can potentially see the exclusion of damning but prejudicial evidence.

The Evidence Act 2006 governs the admissibility of evidence in our courts, and governs the procedures that occur within. This Act has been the subject of review by the Law Commission and as such is set for amendment in the coming years. These changes will necessarily impact the work we do as litigators.

Government Response

In response to the Law Commission, the government has set out to action most of the recommendations. The changes will likely be brought into law in two key movements: through the Sexual Violence Legislation Bill, and the Evidence Amendment Bill.

The Sexual Violence Legislation Bill, in its current form, will see changes to the admissibility of evidence of sexual experience in the criminal and civil context. The Bill will also strengthen the ability for judicial intervention when questioning is deemed unacceptable, and see the use of judicial directions to directly address juror misconceptions and rape myths. The aim of the Bill is to improve the complainant’s experience in the court system. A sexual violence trial is a difficult and often re-traumatising process. As such, we see under-reporting of sexual violence and a systemic lack of support for victims going through a trial. The Bill aims to alleviate some of the pressure felt by complainants by invoking stronger protections and tightening the laws of evidence in this area.

The Evidence Amendment Bill will likely be a package of amendments to the Evidence Act. Of relevance, the Government have indicated that future amendments to the Act will include:

Changes to evidence in family violence cases

In all family violence cases, prosecutors will be required to make reasonable efforts to ensure that the complainant knows they are able to provide evidence in ways other than verbally in court. Alternative methods include the use of pre-recorded examination and the use of cameras to allow a witness to give evidence in a place other than the courtroom with the defendant. This is an effort by the government to help complainants give their best evidence in a less traumatic way.

In family violence cases, counsel will also be required to consider whether a written statement for the jury may be needed. Such a statement would address myths about family violence, preventing the jury from relying on misconceptions they may have about this kind of violence. This will hopefully reduce the chances of jury members relying on myths such as that “a family violence victim can avoid future violence by leaving the relationship”.

Expert evidence in civil trials

Experts providing evidence in civil cases will be required to comply with the applicable rules of court relating to expert evidence and conduct, specifically those in Schedule 4 of the High Court Rules 2016. This is already in practice in criminal hearings. Expert evidence provided by expert witnesses have specific “ethical obligations” owed to the Court when providing their opinion, therefore regulation is often important. This may become relevant in Family Court proceedings, as hearings involving children often “relies heavily on the reports of experts”.

Evidence Regulations 2007

Further acknowledgements by the government include that the Evidence Regulations 2007 are to be “reviewed and modernised”. The Law Commission recognised that transcripts of videos which are submitted as evidence are not included within these regulations. They therefore called for a review of how transcripts can be “regulated to preserve the privacy of the people to whom they relate”.

The Family Court and Evidence Law

The Family Court is able to hear evidence it considers may assist in determining the proceedings, whether or not this evidence would otherwise be admissible under the Evidence Act 2006. Evidence must still be relevant to the proceedings, however rules relating to propensity evidence and hearsay are often imposed more flexibly. Under the amendments to the Evidence Act and the Sexual Violence Legislation Bill, we may see a change in the handling of particular evidence within the Family Court.

During the First Reading of the Sexual Violence Legislation Bill, Andrew Little announced:

“The bill will also apply these rules, as well as Section 44’s complete bar on evidence of a complainant’s sexual reputation, to civil cases as well as criminal ones, because we know that sometimes these issues are relevant in the Family Court.

As the Law Commission noted in its 2019 review of the Evidence Act, the same dynamics and potential for undue harm exist in court cases involving allegations of sexual violence, no matter what the jurisdiction.”

Therefore, it may be that the rules relating to the new Sexual Violence Legislation Bill, specifically the changes relating to evidence of previous sexual experience evidence, will be enforced within the Family Court jurisdiction.

In practice, this may see a shift in the evidence admissible for Care of Children Act cases, such as parenting orders and guardianship matters. This may also see a shift in evidence used in protection order or relationship property matters. Previous sexual experience and reputation evidence can be utilised by defence counsel as an indicator of questionable credibility of the complainant. Credibility debates may arise in discussions about supervised versus unsupervised contact of a child, or when determining whether or not a person is fit to be a guardian.

Despite common sense indicating that previous sexual experience of a person has little impact on their credibility as an applicant or witness, such evidence is still used. The change in the Evidence Act may now see certain evidence being subject to a heightened relevance test, and thus excluded in these types of cases. However, whether these will now classify as ‘sexual cases’ is unclear.

It is likely that these changes will impact defamation proceedings, professional disciplinary proceedings and Tribunal hearings, ACC appeals and tortious claims such as battery and assault.

There is still much debate to be had, and much tweaking of the Bill, before we have all the answers.