Jurisdiction

Jurisdiction

On one level, this is a strange issue to have to deal with up front, given that we are talking about the Uniform Evidence Acts. But as you might expect, given that the task of implementing this uniform regime fell to a number of different parliaments, who all think they knew better than each other. So they are perhaps more appropriately known as the Almost Uniform Evidence Acts. The differences are subtle, and there aren’t that many of them, but it’s best to play it safe, and at least consider the issue.

The question is then, “Which Act?” The short answer is, “Probably NSW”. For criminal practitioners in NSW, most of your time will be spent in a NSW court. And even where that involves Commonwealth crimes, s68 Judiciary Act 1903 (Cth) picks up the local procedural and substantive law provisions, ie, the NSW Evidence Act.

But importantly, the Commonwealth Act may well apply in part. Where you are dealing with the records of Commonwealth Government agencies, s5 of the Commonwealth Act pushes in on the NSW Act. So if you’ve got an ATO document, or a Centrelink document as part of your brief, you need to look at the definitions in the Commonwealth Act.

Also relevant under this heading is the first question off the pool of seen questions on the NSW Bar Exam:

In a hearing on sentencing shortly after the trial, the judge asks if either party is seeking a direction in relation to the application of the Act? What is the judge referring to?

What HH is referring to is whether he or she should direct that the Evidence Act apply to sentencing proceedings. Because as we all know, s4 provides that it doesn’t apply unless HH directs. Section 4(3) gives some guidance as to when the court will make such a direction. The court must direct where proceedings involves proof of a fact, and that fact will be significant in determining sentence. In addition, note s4(4) provides that the court must direct the act applies if it is in the interests of justice to do so.

So, the jurisdictional issue includes the question of whether any Act applies. The Act notably doesn’t apply in civil interlocutory proceedings, or child-­‐related proceedings in the Family Court, and also, more relevantly to criminal practitioners, in the Drug Court.