Contents

Chapter 11
Trial process
(Part 3 of the Act)

Evidence of foreign law

11.116The Law Commission has received one submission in relation to s 144:

144 Evidence of foreign law

(1) A party may offer as evidence of a statute or other written law, proclamation, treaty, or act of State, of a foreign country—
(a) evidence given by an expert; or
(b) a copy of the statute or other written law, proclamation, treaty, or act of State that is certified as a true copy by a person who might reasonably be supposed to have the custody of the statute or other written law, proclamation, treaty, or act of State; or
(c) any document containing the statute or other written law, proclamation, treaty, or act of State that purports to have been issued by the government or official printer of the country or by authority of the government or administration of the country; or
(d) any document containing the statute or other written law, proclamation, treaty, or act of State that appears to the Judge to be a reliable source of information.
(2) In addition, or as an alternative, to the evidence of an expert, a party may offer as evidence of the unwritten or common law of a foreign country, or as evidence of the interpretation of a statute or other written law or a proclamation of a foreign country, a document—
(a) containing reports of judgments of the courts of the country; and
(b) that appears to the Judge to be a reliable source of information about the law of that country.
(3) A party may offer as evidence of a statute or other written law of a foreign country, or of the unwritten or common law of a foreign country, any publication—
(a) that describes or explains the law of that country; and
(b) that appears to the Judge to be a reliable source of information about the law of that country.
(4) A Judge is not bound to accept or act on a statement in any document as evidence of the law of a foreign country.
(5) A reference in this section to a statute of a foreign country includes a reference to a regulation, rule, bylaw, or other instrument of subordinate legislation of the country.
(6) Subpart 1 of Part 2 (which relates to hearsay evidence) does not apply to evidence offered under this section.

11.117Documents that are prima facie reliable because they have been certified, or purport to have been issued by a government or official printer, are automatically admissible. The admissibility of other documents and publications depends on whether a judge determines them “to be a reliable source of information”.

11.118The following issues have been raised with s 144:

Admissibility of printed material from electronic databases

11.119The Law Commission received a submission that printed material from electronic databases produced by commercial legal publishers should be deemed to be reliable under subs (1), (2) and (3). Currently the reliability of such material is determined by judges on an individual basis.

11.120We acknowledge that material produced by commercial legal publishers will often be reliable. However, such reliability is by no means guaranteed in respect of all such publications, in all countries. Although the combination of market forces and the adversarial nature of a trial is likely to act as a reliability filter, we are uneasy about the suggestion for such material to be admissible per se. Moreover, it is not immediately apparent that the current test is difficult to satisfy where the material is from a well-known commercial legal publisher. We would expect that a judge would be more readily satisfied that printed material from an electronic database is “a reliable source of information” when it is from a well-known source or publisher as opposed to a rudimentary electronic database from an unknown publisher. We are satisfied that the current section provides a principled approach to the admissibility of material from commercial legal publishers.

Databases of case law

11.121We have received a submission concerned that s 144(2) is limited to documents from a published volume that consists wholly or partially of law reports and:

11.122The term “document” is defined in s 4 as follows:

document means—

(a) any material, whether or not it is signed or otherwise authenticated, that bears symbols (including words and figures), images, or sounds or from which symbols, images, or sounds can be derived, and includes—
(i) a label, marking, or other writing which identifies or describes a thing of which it forms part, or to which it is attached:
(ii) a book, map, plan, graph, or drawing:
(iii) a photograph, film, or negative; and
(b) information electronically recorded or stored, and information derived from that information
11.123The definition is purposefully wide and clearly includes material derived from electronic sources; it reflects the intention of the Law Commission to ensure that “all information (paper-based or otherwise) which might need to be put in evidence in court can in fact be produced.”900
11.124Paragraph (a) refers to documents “containing reports of judgments of the courts of the country”. The submitter is concerned that the definition of document in conjunction with para (a) may require an entire electronic database to be submitted into evidence, rather than a single printout from it. We do not read the section in this manner and note that the term “reports” also include the singular.901 In our view the construction of para (a) and the definition of “document” is sufficiently wide to cover a printout of a single case from a database.
900Law Commission Evidence: Volume 2, above n 800, at 7.
901Interpretation Act 1999, s 33.