Law Reform Commission: Report on the Consolidation and Reform of Aspects of the Law of Evidence

The Law Reform Commission (“the Commission”) published and launched a report on the consolidation and reform of aspects of the Law of Evidence in January of this year. The Commission’s Report focuses on the following areas:

• Expert evidence
• Documentary and electronic evidence
• Hearsay evidence
• The consolidation of existing Evidence Acts

The Report, which can be accessed here, considers certain aspects of the Law of Evidence and makes 87 final recommendations for their reform. The Report also recommends consolidating the existing Evidence Acts and features a draft Evidence (Consolidation and Reform) Bill which would implement these recommendations. We set out a summary of some of the Commission’s recommendations here under: General Rules of Evidence: Relevance and Admissibility The Commission recommends that in civil cases, the draft Evidence Bill should provide that relevant evidence which would otherwise be ruled inadmissible may be admitted where the parties involved have consented to its admission. The Commission also recommends that, in criminal cases, the draft Evidence Bill should provide that relevant evidence which would otherwise be ruled inadmissible may be admitted where the parties involved have consented to its admission and the Court is satisfied that to do so would not prejudice the right of the accused to a trial in due course of law. The Rule Against Hearsay In relation to the rule against hearsay, one of the Commission’s recommendations is that the draft Evidence Bill should define hearsay as: “any statement, whether made verbally, by conduct, or contained in a document, which is made out of court by a person who is not called as a witness and is presented in court as testimony to prove the truth of the fact or facts asserted.” Exceptions to The Rule Against Hearsay In relation to exceptions to the Rule Against Hearsay, some of the Commission’s recommendations are that:

• the draft Evidence Bill should provide that the common law exception to the rule against hearsay for admissions and confessions be retained.
• the draft Evidence Bill should provide that the common law res gestae exception should be retained.

Expert Evidence In relation to documentary and Expert evidence, some of the Commission’s recommendations are that:

• the draft Evidence Bill should provide that an “expert” is a person who appears to the court to possess the appropriate qualifications, skills or experience about the matter to which the person’s evidence relates (whether the evidence is of fact or of opinion), and who may be called upon by the court to give independent and unbiased testimony on a matter outside the knowledge and experience of the court, and that the terms “expert evidence” and “expertise” should be interpreted accordingly.

Admissibility of Expert Evidence In relation to documentary and admissibility of expert evidence, some of the Commission’s recommendations are that:

• the draft Evidence Bill should not abolish the common knowledge rule, and that matters of common knowledge should remain outside of the range of matters on which expert evidence can be given.
• the draft Evidence Bill provide that the ultimate issue rule should be retained.
• the draft Evidence Bill should provide that a court should continue to allow expert evidence to inform and educate the judge and, where relevant, the jury about the background to the ultimate issue where necessary, while also emphasising that the ultimate decision on such issues is for the court and not the expert.
• The Commission does not recommend the introduction of a threshold reliability test for the admission of expert evidence.