1. Purpose

1. Purpose

The purpose of this Act is to make fresh provision for the law of evidence that is uniform with Commonwealth and New South Wales law.

Of course, while uniformity of legislation across the Australian jurisdictions is the ideal, there are differences (in some cases, significant ones) between the Evidence Act 1995 (Cth.), the Evidence Act 1995 (NSW), the Evidence Act 2001 (Tas) and the Evidence Act 2008 (Vic).

This is referred to in the preliminary paragraph to Chapter 1 of the Victorian act.

There has been debate over whether the UEA represents the codification of the existing law. In some places it replaces the existing common law in a way that reference to the previous law on the subject would be of little assistance. In other areas, it substantially enacts in legislation the existing common law on the subject (for example identification). The best view is probably that the UEA represents only a partial codification of the laws of evidence.

The High Court has warned against unwarranted efforts to try to interpret the UEA consistently with previous case law where the legislation appears intended to give rise to a quite different result. In a significant authority on the Evidence Act 1995 (NSW) the High Court said in Papakosmas v R (1999) 196 CLR 297:

Sections 135, 136 and 137 contain powers which are to be applied on a case by case basis because of considerations peculiar to the evidence in the particular case. It may be proper for appellate courts to develop guidelines for exercising the powers conferred by these sections so that certain classes of evidence are usually excluded or limited. But those sections confer no authority to emasculate provisions in the Act to make them conform with common law notions of relevance or admissibility. (McHugh J at 97, Gleeson CJ and Hayne, Gaudron and Kirby JJ agreeing on the general principle).