Chapter 1
Initial review under section 202: background, purpose
and guiding principles

Structure of this report

1.54This report generally covers issues in the same sequence as the Act. The Act has five Parts:

  • Part 1: Preliminary provisions
  • Part 2: Admissibility rules, privilege, and confidentiality
  • Part 3: Trial process
  • Part 4: Evidence from overseas or to be used overseas
  • Part 5: Miscellaneous

1.55This report considers issues raised with Parts 1–3 of the Act. Submitters did not raise any issues with Parts 4 and 5.

1.56Consideration of matters under Part 1 of the Act is covered in chapter 2. Although Part 1 contains the general interpretation provision (s 4), consideration of whether defined terms should be amended is located in the chapter that contains discussion about the substantive provisions to which the terms relate. The terms considered in this report are “hearsay statement”, “proceeding”, “visual identification evidence”, and “witness”. Similarly, although s 12A (which preserves the common law in relation to statements of co-conspirators and co-defendants in certain circumstances) is located in Part 1, that provision is considered in chapter 3, alongside the general discussion on co-defendant’s statements. Matters under Part 3 of the Act are covered in chapter 11.

1.57Part 2 of the Act contains the core admissibility provisions of the Act. It is therefore unsurprising that discussion of the provisions in this Part form the majority of this report. Discussion of Part 2 has been divided into a number of chapters that cover:

  • hearsay, defendants’ statements and co-defendants’ statements (ss 16–34);
  • improperly obtained evidence (s 30);
  • previous consistent statements (s 35);
  • veracity and propensity evidence (ss 36–43);
  • complainants in sexual cases (s 44);
  • identification evidence (ss 45 and 126); and
  • privilege and confidentiality (ss 51–69).

1.58Some of the discussion in these chapters necessarily refers to, and considers amendments to, sections located in other Parts of the Act. For instance, the chapter on hearsay, defendants’ statements and co-defendants’ statements considers definitions of relevant terms in Part 2. Likewise, the identification evidence chapter discusses s 126, which deals with judicial directions where a case depends wholly or substantially on the correctness of visual or voice identification evidence.