About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

16 Aust. & N.Z. J. Criminology 1 (1983)

handle is hein.journals/anzjc16 and id is 1 raw text is: AUST & NZ JOURNAL OF CRIMINOLOGY (March 1983) 16 (1-3) EDITORIAL The Laws of Evidence-the Inner Sanctum? In July 1979, the Australian Law Reform Commission was asked by the Federal Attorney-General to review the laws of evidence applicable in proceedings in Federal Courts and the Courts of the Territories with a view to producing a wholly comprehensive law of evidence based on concepts appropriate to current conditions and anticipated requirements. It is a massive task, arguably the largest given to the Law Reform Commission, and all the more daunting because of the voluminous body of law, both judge-made and statute which has sprouted in the area. There is widespread agreement that much of the Australian law of evidence is in need of substantial reform The New South Wales Law Reform Commission in its Report on The Rule Against Hearsay (1978) stated: The law of evidence is in constant use. It is basic to the proper administration of justice. Yet in our view much of it is complicated, obscure, irrational, and sometimes unjust in operation (p 25). Traditionally, the law of evidence has been seen as perhaps the classic example of lawyers' law-technical rules, elaborated and refined continuously over the decades by judicial decisions into a highly complex maze of rules and exceptions comprehensible only to the professionals. If the law in general is seen as a closed castle, the laws of evidence are the inner sanctum. As a consequence, the laws of evidence have been left almost entirely to the lawyers; criminologists and other non-legal researchers generally leaving well alone what they don't know. As McBarnett has recently observed: Sociologists may, in pointing out how defendants are mystified by the law, also have been too readily deterred by the mystique themselves. (Conviction-Law, The State and The Construction of Justice 1981 p 9.) The laws of evidence are very much part of this mystique. In fact, the laws of evidence as the New South Wales Law Reform Commission stated are basic to the proper administration of justice. They should reflect the central aims and purposes of a criminal trial and enable those aims and purposes to be carried out. Hence, any analysis of the laws of evidence demands a consideration of the proper aims and functions of the criminal trial and of the best means of achieving these goals. One might instance the question of using the rules of evidence to exercise some control over police practices, a matter on which the Australian High Court and the English House of Lords have adopted different stances. Broad issues such as these fall squarely within the province of criminology, and are not simply matters for lawyers. Likewise, the role of the laws of evidence in maintaining the proper balance between the community's need to have the guilty convicted and the rights of the individual to a fair trial are matters of direct and obvious relevance to persons in the field of criminology. Similarly, questions of the reliability of 1

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most