Welcome to the Evidence Act 2008

This blog was started back when the Evidence Act 2008 was nothing more than a gleam in Parliament's eye. It was an attempt to further understanding of some challenging new legislation when information about it was difficult to find.

Since then, many authors and luminaries have turned their minds to the complex issues the Act obliges Victorian lawyers to engage with. A blog devoted exclusively to this one piece of legislation isn't necessary, and is impossible for us to give the attention it deserves.

If you're looking for a more conventional blog posting on topical legal issues, have a look at Quis Custodiet Ipsos Custodes? by the same authors.

This site is no substitute for legal advice from an Australian lawyer. If you have a legal problem, it's great that you are doing a bit of research, but go consult a professional.


The NSW Supreme Court in Victoria

There's been a couple of interesting decisions coming out of the NSW Supreme Court (go and have a look at QCIC for further). The question for present purposes is: how relevant are they to the Victorian interpretation of the UEA?

The short answer is, nobody knows. While it's tempting to suggest that identical legislation will be interpreted with consistency and comity in mind, in both R v Fleming and R v Naa there were substantial issues of NSW law bound up in each deicision.

Let's look at Naa. Sure, it involved issues of 138 and 139 of the Evidence Act 1995 (NSW), and I've no doubt that it'll be referred to by Victorian courts. But to even get to that point, the NSW Supreme Court had to engage in a lengthy examination of the requirements of their custody provisions. Are they identical with our Crimes Act? I'm no expert, but I doubt it.

I simply make the point that it's easy to go overboard with the proposition that NSW decisions will be considered 'de facto binding' here. With this in mind (and conscious that authors like Odgers and Anderson et al are already keeping on top of happenings north of the border) we'll endeavour to focus on local judicial decisions next year.


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