This chapter focuses on the exclusionary powers of the trial judge. Two forms of exclusion are examined: discretionary, where the trial judge has a choice whether to exclude the evidence; and mandatory, where the trial judge is required to do so. The discretions under the Act play a more significant role than the discretions at common law in determining the admissibility of evidence. This may be because the Act adopts the logical relevance test. However, despite evidence being admissible and relevant, the trial judge has the discretion to exclude the evidence. Further, many exclusionary rules of evidence at common law (discussed in the earlier chapters) are relaxed and the Act adopts a more flexible approach to the admissibility of evidence.

This chapter first considers the discretionary and mandatory exclusions regulated by pt 3.11 (ss 135–9) of the Act. The concepts of ‘probative value’ and ‘unfair prejudice’ govern the exercise of the discretions. The chapter then considers how the provisions on corroboration and unreliability under pts 4.4 and 4.5 (ss 164–165B) have altered the common law and how their operation may affect the weight of evidence.

This chapter examines the Old English period, outlining some of the key historical developments from the settlement of Germanic-speaking groups in England through to the Norman Conquest. The key features of Old English are discussed, including phonology and orthography, inflexional morphology, syntax, and lexis. The discussion also deals with Old English dialects, the impact of Old Norse on the development of English during this period, the preservation of textual material in Old English, and the West Saxon Schriftsprache. The chapter concludes with two specimen passages of late Old English prose and verse, accompanied by commentary on key linguistic features of the passages.

This chapter discusses the provisions of the Act that address character evidence. The term ‘character evidence’ is not defined in the legislation, so some recourse to the common law is required. However, pt 3.8 of the Act provides a simple mechanism allowing evidence of character to be adduced in criminal proceedings, as follows. (1) Exclusionary rules that would prevent a defendant from adducing evidence of good character (the hearsay, opinion, tendency and credibility rules) do not apply. (2) If the defendant adduces evidence of good character (whether by giving evidence or through the testimony of another witness) then the prosecution, or another defendant, can respond with evidence of bad character (because the same exclusionary rules also do not apply).

This chapter also deals with the interaction of character and credibility evidence, and concludes with a discussion of evidentiary and procedural rules relating to character evidence about complainants and victims, addressed mainly in legislation outside the Act.

This chapter looks at changes in the first quarter of the twenty-first century and discusses possible future developments. The role of social media, migration, and travel in the rapid global spread of new features is discussed, as is the levelling of local and regional varieties and the rise of multicultural varieties in large cities. The Oxford English Dictionary is used to illustrate patterns of lexical innovation and changes of meaning in this period. Recent changes in the nature and status of Received Pronunciation are outlined. Sections devoted to recent changes in pronunciation and grammar are followed by discussion of possible future trends.

This chapter is about the admissibility of evidence in court as opposed to the adducing of evidence in court. This difference is significant. Even if the potential admission of evidence satisfies procedural requirements, the court may exclude it on the basis that it falls within one or more of the exclusionary rules of evidence, and not within an exception to those rules.

The fundamental rule in evidence law is that evidence that is relevant is admissible, unless it is excluded by one of the rules of exclusion. Where the evidence is irrelevant, it is inadmissible, and there are no rules of inclusion. Therefore, relevance is the first hurdle in considering whether an item of evidence is to be admitted in court.

To be admissible, evidence must be relevant to a fact in issue. In other words, the item of evidence must be able to affect the assessment of the probability that the fact in issue exists. Facts in issue are determined by reference to the substantive law. The material or principal facts, often referred to as the ‘ultimate issues’, ‘essential allegations’ or ‘material allegations’, are what must be proven.

This chapter considers the rules affecting confessions and admissions in civil and criminal proceedings. Parties can make admissions because a previous representation can constitute an admission before there is even any case. As a matter of terminology, in criminal proceedings admissions involve the defendant acknowledging only a limited aspect of the case against them, whereas a confession involves a full acknowledgement of guilt. Despite these technical differences, the term ‘admissions’ is used in the Act to cover both circumstances and therefore in this chapter for consistency.

The first issue this chapter addresses is whether the evidence adduced is in fact an admission. This is followed by an explanation of the statutory rules and cases pertaining to mandatory electronic recording of admissions. The chapter then considers the voluntariness and reliability requirements under ss 84 and 85. The types of statements and conduct that may amount to evidence of an admission in civil and criminal proceedings are explored. Finally, the unfairness discretion under the common law and the role of s 90 are considered.

The focus of this book is the uniform Evidence Act (referred to throughout as ‘the Act’ or ‘the Acts’). The Act has not been introduced in Queensland, South Australia or Western Australia, where each state’s Evidence Act and the common law apply. However, the Act is still an important reference guide for those states due to the connection between the common law and the Act. Despite the differences between jurisdictions that have adopted the Act, there is a significant degree of uniformity. Accordingly, in this book, the provisions that are extracted to indicate the rules in relation to the Act come from the Commonwealth Act. Any important jurisdictional differences are separately identified.

This chapter considers the legislative history of evidence law and some fundamental introductory concepts that are used frequently in evidence law and the trial process. This chapter is an introductory overview; specific topics are dealt with in substance in subsequent chapters.

In this chapter, we focus on multilingualism and language contact, moving away from the strong focus on monolingualism characteristic of many traditional approaches to language history, and discussing various onsets, scenarios and outcomes of language contact. We introduce the concepts of borrowing and imposition as central constructs to understand contact-induced change in language, illustrating and critically examining these ideas in three case studies: the development of loanwords in Canadian French, Germanic substrate effects in the formation of American Englishes and mixed-language business writing in medieval Britain after the Norman Conquest. Building on these cases, we discuss which elements of the language can be transferred and explore possible pathways of social diffusion of borrowings, as well touching upon various traits and examples of code switching and similar multilingual practices in historical texts. Finally, we evaluate the constructs of pidgin and creole languages, discussing to what extent they can be seen as different in structural terms, or whether their distinctiveness arises primarily from the sociohistorical circumstances from which they arose.

This chapter explains credibility evidence under pt 3.7 of the Act and the common law principles governing the admission of credibility evidence. Central to this topic is what constitutes credibility evidence.

In general, credibility evidence is evidence that is directly relevant to the establishment of the credibility of a witness or another person for the ultimate purpose of establishing the facts in issue. As a consequence, credibility evidence is ‘collateral’ with respect to the establishment of the primary facts in issue in a proceeding. From the perspective of relevance, credibility evidence is admissible, even though it is collateral. From the perspective of admissibility, credibility evidence is initially excluded (‘primarily’) because it is collateral, but is then admitted (‘secondarily’) under specific exceptions.

The chapter thus discusses credibility evidence; exclusion of credibility evidence about a witness under the credibility rule; exceptions that permit admission of credibility evidence about a witness; and the admission of credibility evidence about persons other than witnesses.