Example Referencing Law Essay

 

Australian Guide to Legal Citation Example Essay

I ASSIGNMENT

A Introduction

The uniform Evidence Act (UEA) has both substantially changed the common law and has used the common law to better the laws of evidence.1 Section 38 under the UEA ‘…concerns unfavourable witnesses will be examined’; 2 this section has replaced the common law with statutory law. This essay will focus on the recommendations of the Australian Law Reform Commission (ALRC), case law and legislation to demonstrate the effectiveness of the different approaches to the common law. 

B Unfavourable Witnesses

Section 38 of the UEA made substantial changes to the common law in relation to “hostile witness”. The UEA changed the term “hostile witness” to “unfavourable witness” and abrogated the situation in which this type of witness could be cross-examined.

1 Under the Common Law

Under common law a witness can only be cross-examined by the party who has called them if the witness is “hostile”. It is a general rule that a party who calls a particular witness to give evidence may not ask that witness questions designed to discredit them.3

2 The Australian Law Reform Commission

The ALRC explained the limitations of the definition “hostile”. For example, it is rare for the court to declare a witness as hostile because the court requires something more than just unfavourable evidence. Simply stated, the higher test made it difficult in labelling a witness as “hostile”.4 The definition in turn led the law to discourage the calling of witnesses that could not be cross-examined.5

 

 

1 Evidence Act 1995 (Cth).
2 Ibid [2].
3 Martin Hinton and Nerissa Schwarz, ‘Practice Note: The Hostile or Unfavourable Witness’, (2008) 27, The University of Tasmania Law Review 229, 229.
4 Randall v The Queen (2004) 146 A Crim R 197
5 Hinton and Schwarz, above n 3.

 

3 Comparison

The term “hostile” has been described as an “artless piece of drafting”.6 The common law provision was potentially damaging to justice in that it limited evidence that could have been significant to the case. Simpson summarises that the common law dealing with the unhelpful witness is restrictive; if the witness is not declared “hostile” or “adverse”, then counsel must generally accept the damaging evidence of the witness.7 Similarly the remedy of having a witness declared “hostile” is not easily obtained.8 Where it is not obtained the party concerned will often be left in the position of having no remedy.

The effect of s38 of the UEA demonstrates the effectiveness of evidence that would otherwise not be admitted. For example, in Randall v The Queen the Crown was obliged to call witnesses to the alleged offence, without the ability to have the witnesses declared unfavourable under s38 the Crown could not have cross-examined them, which would have had a significant, and arguable negative impact on the case.9

The case of R v Milat was also another significant case that showed the importance of s38.10 In this case the Crown was obliged to call witnesses. The Crown was then able to seek leave to cross-examine these witnesses about evidence that had been given and was unfavourable to the Crown’s case.

 

 

 

 

 

 

6 Shane Simpson, ‘The Characterisation of One’s Witnesses for the Purpose of their Impeachment (1976) 50,The Australian Law Journal 410, 412.
7 Ibid.
8 Criminal Code Act 2014 (NT); Evidence Act 1995 (Cth)
9 (2004) 146 A Crim R 197.
10 (Unreported Description, Supreme Court of New South Wales, Hunt CJ, 23 April 1996).

 

BIBLIOGRAPHY

A Articles/ Books

Cook, Catriona et al, Laying Down the Law (Lexisnexis Orders/service, 9th ed, 2014)

Hemming, Andrew, Miiko Kumar and Elisabeth Penden, Evidence: Commentary and Materials (Lawbook Co., 8th ed, 2013)

Hinton, Martin and Nerissa Schwarz, ‘Practice Note: The Hostile or Unfavourable Witness’, (2008) 27, The University of Tasmania Law Review 229

McEwan, Alexander, ‘The Rule in Brown v Dunn in Australian Criminal Law: MWJ v R and R v Map’, (2006), 13, James Cook University Law Review, 155

Simpson, Shane, ‘The Characterisation of One’s Witnesses for the Purpose of their Impeachment (1976) 50,The Australian Law Journal 410

B Case Law

Adam v The Queen (2001) 207 CLR 96

Browne v Dunn (1893) 6 R 67

R v Ashton, Farmer and Randall [2003] TASSC 140 (4 December 2003)

R v Milat (Unreported Description, Supreme Court of New South Wales, Hunt CJ, 23 April 1996)

Randall v The Queen (2004) 146 A Crim R 197

C Legislation

Australian Constitution

Criminal Code Act 2014 (NT)

Evidence Act 1995 (Cth)

D Other Sources

Australian Law Reform Commission, Australian Government, Uniform Evidence Law (30 July 2012) <http://www.alrc.gov.au/inquiries/uniform-evidence-law> 

Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985)

Wroe, David and Rachel Olding, ‘Jihadist Fears Spark Review of Evidence Laws’ The Sydney Morning Herald (Sydney), 1 July 2014

 

 

 

 

The AGLC Referencing Style has two main features:

  • In-text reference numbers within the text of your assignment and accompanying footnotes. These need to be consecutively numbered. These are used to acknowledge each source you use.
  • The bibliography which appears at the end of your assignment and is a complete list of everything you have cited. Bibliographies are not always required, so please check with your unit coordinator or publisher.

Sample text with AGLC footnotes

From Peter Handford, 'A New Limitation Act for the 21st Century' (2007) 33(2) University of Western Australia Law Review 387.

Sample Bibliography 

 

 

 

 

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