Judicial Role and Truth Seeking in Australian Evidence Law

Procedural law and judicial process ‘[A] judge is not a mere umpire to answer the question “How’s that?” His object, above all, is to find out the truth, and to do justice according to law.’ Jones v National Coal Board [1957] 2 QB 55, 63 (Denning LJ). Discuss, with reference to Australian principles of evidence law.

The judiciary has the duty to do justice according to law. Justice here may mean an accurate application of the rules of law, which is authoritative. Such application is according to the procedural rules. Justice represents a procedural justice to be achieved while dealing with legal issues by following established procedural rules. This essay will address the principle of evidence law in context to Australia and explore the approach adopted by the judiciary in delivering justice.

Australia follows the rule of law of the English legal system and it incorporates the judicial review based on the doctrine of separation of powers. The Judicial review is primarily use for redressal of individual grievances. Australian courts follow the balance of probabilities as the standard of proof in fact finding. This is the view held by Murphy J in the case of TNT Management Pty Ltd v Brooks where he stated that the belief does not have any place in a legal system where the balance of probabilities applies. Law requires that the fact-finder decides on verdict, which must not reflect any personal beliefs. Decision must be made based on evidence and the arguments in the trial. In the case of Sheldon v Sun Alliance Australia Ltd, the Supreme Court of South Australia held that fact evidence that is logically probative is admissible at common law. The Australian Evidence Act 1995, 97(1) provides that for evidence, relevant is not enough and it requires significant probative value. This is supported by the case of Jacara v Perpetual Trustees, where the Federal Court of Australia. Further it was supported by the ruling of the Australian High Court in the case of Pfenning v The Queen, which states that the evidence must have cogency such that if it is accepted there is no reasonable explanation other than the inculpation of the accused in the offence. Evidence law in Australia, as discussed earlier, is governed by a set of rules and principles. It is a compilation of procedural rules and also principles, such the relevance and probabilities, which objective is fact finding by the courts and also regulate the process. The judge decides questions of law, admissibility of evidence, and questions of facts. Fiona Hum et al state that for determining truth or falsity of any representations and events, the court relies on information, documents and witnesses. Such determination is subject to the rules and principles of evidence law. The law of evidence provides procedure in that regard. For instance, the Evidence Act 1995 provides for its application, according to Section 4, to all proceedings in a federal court. While the Section 4 provides for courts to make direction regarding applicable proceeding to the proof of a fact, it also provides for court to makes direction appropriate in the interests of justice. The latter provision extends the application of the procedural rules from merely regulating the procedures, but also to attaining substantive justice. This could be seen in Section 116 where the court can provide special

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1. Tom Campbell, Prescriptive Legal Positivism Law, Rights and Democracy (UCL, 1st ed, 2004) 111.
2. Marc Hertogh and Simon Halliday, Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives (Cambridge University Press 2004) 23.
3. Ho Lock Lai, A Philosophy of Evidence Law: Justice in the Search for Truth (Oxford University Press 2008) 107.
4. Sheldon v Sun Alliance Australia Ltd (1989) 53 SASR 97, 148.
5. Jacara v Perpetual Trustees (2000) 180 ALR 569.
6. Pfenning v The Queen (1995) 182 CLR 461, 481.
7. Fiona Hum et al, Australian Uniform Evidence Law (Cambridge University Press 2019) 3.
8. Ibid.
caution to the jury. It provides that in case an identification evidence is admitted, the jury is inform of the special caution and the reason before accepting such evidence. Fiona Hum et al observe that this sectionis not about regulating admissibility of evidence, but also to mitigate potential miscarriage of justice as the evidence could turn out a mistake. This reasoning demonstrates that the concept of honestly could override the principle of reliability in the interest of justice. Section 116 leaves lesser judicial discretion.

Tom Campbell described justice as not including substantive justice, which is delivered independent of the state law. However, there are other areas of law where the courts may not abide by rule of law. Judges can thus do justice beyond procedural rules. The case of Karankarn v Secretary of State for the Home Department could be cited here that differentiated the different approach being adopted in civil litigation and administrative decision making. Brook LJ stated that the court bases its decision on the common law doctrine of balance of probabilities for fact finding in a civil litigation in order to find the truth considering the evidence provided by the parties. However, it is different in administrative decision making where there are multiple approaches towards decision making subject to particular circumstance of the case and adoption by a delegate may not constitute an error of law. Hilary Evans Cameron observes that in Australia, a court will not overturn a decision just because the reasoning of a tribunal is demonstrably unsound or illogical. Thus, fact finding by a faulty process will not constitute a reviewable error. Fact-finding subject to procedure may not always be the approach adopted by the court. It may be in civil cases, but cases such as falling under refugee law may not simply be about just fact-finding. Debates by refugee law scholars and that of UNHCR opined that determining the status of refugee cannot only be about truth. It cannot be about determining accuracy of statement by applicants. It should conduct a risk assessment, which would facilitate determination of what to choose or what to reject. These perspectives represent determining substantive justice rather than just procedural justice. Thus, in cases beyond procedural justice, the courts have to look beyond just the rule of law.

The above observation highlights the importance of justice that could exclude procedural rules under the law of evidence. This does not mean that law as such could be disregarded. Judicial review ensures the balance between achieving justice and maintaining the rule of law. This is seen in the case of Bunning v Cross, which ruled that evidence may be excluded on the grounds of public policy. The courts needs to weigh evidence subject to factors, including degree of culpability of police officers in illegal search; illegality affecting reliability of evidence; easy obtaining of evidence through legal means; seriousness of charges; or breach by police officers of legislative intent that prohibits misconduct. In such cases the courts have discretion to exclude evidence that was unlawfully obtained. Another example that could exclude evidence is public interest. Irrespective of the fact that the evidence is relevant, it may be excluded on the ground of public policy. Public interest may override the necessity of full disclosure of facts to the court. The challenge would be when public

9. Fiona Hum et al, Australian Uniform Evidence Law (Cambridge University Press 2019).
10. Tom Campbell, Prescriptive Legal Positivism Law, Rights and Democracy (UCL, 1st ed, 2004) 111.
11. Karankarn v Secretary of State for the Home Department [2000] EWCA Civ 11, [2000] 3 All ER 449.
12. Ibid, at p 18.
13. Hilary Evans Cameron, Refugee Law's Fact-Finding Crisis: Truth, Risk, and the Wrong Mistake (Cambridge University Press 2018) 191.
14. Bunning v Cross, 141 CLR 54 (1978).
15. David L. Hudson Jr and John R. Vile (eds), Encyclopedia of the Fourth Amendment (SAGE Publications 2012) 55.
interest could be claimed to protect state interest. The court has wide discretion towards deciding an issue that could affect public interest. The legal issue lies in situation where substantive rights of the litigants are affected. Courts, in such situation, are left with the role of balancing public interest in non-disclosure and public interests in fair proceedings. Such a balancing role could be seen in the case of Commonwealth v Northern Land Council, where the High Court of Australia considered Cabinet’s notes of actual discussion and decisions sensitive than the documents for Cabinet’s consideration to be disclosed only in extreme exceptional situation. Also, similar balancing act could be seen in legislation. The Evidence Act 1995, s128 provides for courts to require witnesses to give evidence that could incriminate them in the interest of justice. At the same time, courts may issue a certificate that any such evidence would not be used against the witnesses, except in case of criminal proceeding regarding falsity of evidence.

Discussion so far has demonstrated that judges abide by the procedural rules of law and other principles in their fact-finding activities. There are areas where such evidence law provides for courts’ discretion to prioritise justice and public order that could undermine the procedural rules and principles. In this respect, the statement of Lord Denning that the judges follow laws to find the truth and do justice in Jones v National Coal Board, may not hold true to that extent. Although, this does not undermine the key function of the judge is to determine the facts of the case before considering the applicable law. They have to assess the evidence presented in order to piece together of what transpired. Understandable as it is their role in finding the facts, it is even more important to identify the applicable law. Such identification of law not only involves choosing the right provision, but also the objective that the decision of the judges is trying to achieve. The reason being, as discussed earlier, justice includes both achieving a procedural justice as well as substantive justice. It cannot be limited to procedural justice. In this light, the statement that justice is according to law is not appropriate when the principle of substantive justice, public policy or state interest could override the law of evidence and its rules and principles. Alternatively, if law could be defined as not just the enacted legislation, but also include this substantive justice, public policy or state interest, then the statement is appropriate. If going by the latter definition, courts have wide discretion in delivering justice and defining the scope of a law. Thus, Ho Lock Lai observed that truth is not the only goal. It is claim that a trial primarily aims for truth. However, there are collateral values outside truth and rights of the accused in criminal cases. For instance, an accused cannot be compelled to testify. Thus, even if truth is desired, it is not because of truth but because justice may be done. Every case has to be determined based on merits subject to the facts of the case. Facts must be proved to support a claim. Justice is contingent of facts. Judges must find the truth and deliver justice by not just narrowly applying substantive law to only fact-finding, but must be applied beyond that.


16. Colin Tapper, Cross and Tapper on Evidence (Oxford University Press, 11th ed, 2007) 512.
17. Commonwealth v Northern Land Council HCA 24 April 21, 1993
18. Colin Tapper, Cross and Tapper on Evidence (Oxford University Press, 11th ed, 2007) 519.
19. Andrew Choo, The Privilege Against Self-Incrimination and Criminal Justice (Bloomsbury Publishing, 10th ed, 2014) 36.
20. Jones v National Coal Board [1957] 2 QB 55, 63.
21. Karen Walden-Smith, ‘Judges are Human, Not Many People Know That: The Travails of the First Instance Judge’ in Sinéad Agnew (ed), Modern Studies in Property Law Bloomsbury Publishing, 10th ed, 2019) 40.
22. Ho Lock Lai, A Philosophy of Evidence Law: Justice in the Search for Truth (Oxford University Press 2008) 69-70.
23. Ho Lock Lai, A Philosophy of Evidence Law: Justice in the Search for Truth (Oxford University Press 2008) 68-69.

A truth-finding approach may not deliver justice. This occurred in the case of Lindy Chamberlain where it was found that all scientific method submitted at the trial was wrong. However, it may not hold true to all other cases. For instance, when the truth finding approach was used in R v Edward Charles Splatt, all evidence was without error. A legal system when it is corrupted, there cannot be a determination of merits of the case. This occurred with the case of R v Keogh where the chief prosecution contradicted his sworn evidence in 2004 when he gave his evidence in 2009. The courts did not consider the merits of the arguments in the years the case went on. Thus, how can justice be achieved in such situation when the judges do not follow the law? How can justice be delivered fresh evidence arises after a trial and the High Court is prohibited from hearing the case? One of the impacts due to the existing mechanism and fact finding or the justice system is the number of wrongful conviction. Lynne Weathered, thus, observes that Australia is lagging behind other common law countries in terms of mechanisms that could correct the issue. Wrongful conviction has become an unenviable part of the criminal justice system.

This essay has explored the approach of the courts in delivering justice. It found that justice includes both procedural and substantive justice. The law of evidence, thus, comprises procedural rules and principles and values outside such rules and principles. Judges follow principles such as the balance of probabilities as the standard to find facts, determine them and apply laws in order to deliver justice. Judges look for evidence with requires significant probative value. While doing so, they follow stipulated evidence. However, it is not just procedural justice, but judges aim to deliver justice based on substantive law. This could be seen in regard to procedures that require considering justice or public interest. Thus, a fact-finding approach requiring evidence with probative value may not always be the justice that the courts look out for. Law, rules or policy cannot be evidence-based only. Justice has to be equally procedural and substantive, which could be seen with the Evidence Act 1995, s128 regarding self-incriminating evidence or with the ruling in Commonwealth v Northern Land Council balancing public interest in non-disclosure against fair proceedings.

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24. R v Edward Charles Splatt (1979 ) SASR 21.
25. R v Keogh [2019] QCA 173.
26. Evan Whitton, Our Corrupt Legal System (BookPal 2010) 8.
27. Lynne Weathered, ‘Does Australia need a specific institution to correct wrongful convictions?’ (2007) 40(2) Australian & New Zealand Journal of Criminology 179.

Articles/Books/Reports

Cases

Bunning v Cross, 141 CLR 54 (1978).

Commonwealth v Northern Land Council HCA 24 April 21, 1993

Jacara v Perpetual Trustees (2000) 180 ALR 569.

Jones v National Coal Board [1957] 2 QB 55, 63.

Karankarn v Secretary of State for the Home Department [2000] EWCA Civ 11, [2000] 3 All ER 449.

Pfenning v The Queen (1995) 182 CLR 461, 481.

R v Edward Charles Splatt (1979 ) SASR 21.

R v Keogh [2019] QCA 173.

Sheldon v Sun Alliance Australia Ltd (1989) 53 SASR 97, 148.

Legislation

Campbell, Tom, Prescriptive Legal Positivism Law, Rights and Democracy (UCL, 1st ed, 2004)

Cameron, Hilary Evans, Refugee Law's Fact-Finding Crisis: Truth, Risk, and the Wrong Mistake (Cambridge University Press 2018)

Choo, Andrew, The Privilege Against Self-Incrimination and Criminal Justice (Bloomsbury Publishing, 10th ed, 2014)

Hertogh, Marc and Simon Halliday, Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives (Cambridge University Press 2004)

Hum, Fiona et al, Australian Uniform Evidence Law (Cambridge University Press 2019)

Hudson Jr, David L and John R. Vile (eds), Encyclopedia of the Fourth Amendment (SAGE Publications 2012)

Lai, Ho Lock, A Philosophy of Evidence Law: Justice in the Search for Truth (Oxford University Press 2008)

Tapper, Colin, Cross and Tapper on Evidence (Oxford University Press, 11th ed, 2007)

Walden-Smith, Karen, ‘Judges are Human, Not Many People Know That: The Travails of the First Instance Judge’ in Sinéad Agnew (ed), Modern Studies in Property Law Bloomsbury Publishing, 10th ed, 2019)

Weathered, Lynne, ‘Does Australia need a specific institution to correct wrongful convictions?’ (2007) 40(2)

Australian & New Zealand Journal of Criminology 179.

Whitton, Evan, Our Corrupt Legal System (BookPal 2010)