Not Bound by the Rules of Evidence
In this useful piece, solicitors Tim case and Alan Wrigley canvass the procedural conduct of causes in jurisdictions where it is prescribed “the rules of evidence do not apply” or like prescription. As they predicate, so much does not entail that the parties may litter the trial of the cause with evidence which is irrelevant or is bereft of arguable probative value. This article was published in the Queensland Law Society’s “Proctor” magazine on 2 May 2023 and is reproduced herein with the kind consent of the Society and the authors.
Tim Case is a Partner, and Alan Wrigley is a Senior Associate, in the Litigation and Dispute Resolution Group at McCullough Robertson Lawyers in Brisbane.
Rules of evidence lay down the means by which facts may be proved in a court of law.
They are fundamental to common law legal systems and many modern rules of evidence can be traced back to the Middle Ages. These rules are typically exclusionary and dictate what cannot be relied upon by a court and therefore what is not admissible in evidence.
Common examples are the rule against hearsay, and the general exclusion of non-expert opinion evidence.
Rules of evidence are notoriously complex. The rules themselves are riddled with exceptions and often vest a general discretionary power in the court to exclude evidence that is ‘unfairly prejudicial’, even where otherwise relevant.
Specific legislation exists at both at Commonwealth and state level to regulate existing common law rules.1 Questions of admissibility inevitably pervade any dispute which reaches a court room. Indeed, one commentator has remarked (with a hint of exaggeration) that the body of law which comprises the rules of evidence is:
“Founded apparently on the proposition that all jurymen are deaf to reason, that all witnesses are presumptively liars and that all documents are forgeries, it has been added to, subtracted from and tinkered with for two centuries until it has become less of a structure than a pile of builders’ debris.”2
Nonetheless, rules of evidence have also been described as “part of the machinery” by which a court ensures parties to a legal dispute receive a fair hearing in a system of justice that is essentially adversarial.3 A failure to correctly apply the rules of evidence will often lead to an appellable error.4 At the most basic level, the rules of evidence have been described as:
“…the attempt made, though many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth”.5
Notwithstanding the importance of the rules evidence, statute books are filled with express references to certain tribunals, statutory authorities and decision-making bodies not being bound by the rules of evidence and/or being entitled to inform themselves on any matter as they see fit, effectively dispensing with the rules of evidence.
These provisions stand in stark contrast to the generally strict rules of evidence applied within a courtroom and, importantly, are slightly different to legislative provisions which allow courts of record to dispense with strict proof on an issue or permit evidence to be given in a different way.6
By way of example, the statute which establishes the Queensland Civil and Administrative Tribunal (QCAT) provides that the tribunal:
- “is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures”7
- “may inform itself in any way it considers appropriate”,8 and
- “must act with as little formality and technicality as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit”.9
Provisions such as the above, which are common for statutory tribunals such as QCAT, are intended to be facilitative in nature, rather than restrictive. The purpose is to free tribunals, to some extent, from the constraints and rigours that would otherwise be applicable to courts of law and which Parliament has deemed would not be necessarily appropriate to fact-finding tribunals, such as QCAT.10
Importantly, however, where a tribunal such as QCAT is not required to apply the rules of evidence, that freedom or flexibility applies at the stage of the reception of such evidence, rather than in the evaluation and consideration of that evidence.11
For example, a tribunal may determine that is appropriate to receive and consider second, or even third-hand hearsay evidence (which would otherwise typically be excluded).
Decisions of quasi-judicial bodies such as QCAT, even when relieved of the rules of evidence, must still be based on evidence that has rational probative force. Rules of evidence cannot simply be ignored as being of no account.12 That is, the decision of a tribunal not bound by the rules of evidence must still be based on material which tends logically to show the existence or non-existence of facts relevant to the issue which the fact-finding tribunal is being asked to determine.13 In doing so, the tribunal:
“must not spin a coin or consult an astrologer, but they may take into account any material which, as a matter of reason, has some probative value… If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.”14
In determining whether a particular piece of evidence has “some probative value” or “rational probative force”, there is perhaps an inclination to simply resort back to the established rules of evidence which would otherwise be applicable. However, appeal courts have consistently re-affirmed the principle that, where the rules of evidence have been expressly excluded by the operation of legislation, they are “not to creep back through domestic procedural rule”.15
Indeed, it remains well-accepted that facts can be fairly found without demanding adherence to the rules of evidence. Accordingly, courts have also stressed that the rules of evidence form no part of the rules of natural justice.16
That is, a party can still receive a fair hearing without resorting to strict rules of evidence.17 Fundamentally, the position remains that tribunals such as QCAT must, despite not being bound by formal rules of evidence, administer “substantial justice”.18
1 See for example, Evidence Act 1995 (Cth); Evidence Act 1977 (Qld).
2 CP Harvey, The Advocate’s Devil, 1958, p79.
3 Polizzi v Commissioner of Police (No.2)  WASC 166 –.
4 Deputy Commissioner of Taxation v Ahern (No.2)  2 Qd R 158, 163.
5 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, 256 (Evett J), cited with approval by French CJ in Kostas v HIA Insurance Services Pty Ltd  HCA 32; (2010) 241 CLR 390 .
6 See for example, Evidence Act 1977 (Qld), s129A.
7 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s28(3)(b).
8 Ibid s28(3)(c).
9 Ibid s28(3)(d).
10 Minister for Immigration & Multicultural Affairs v Eshetu  HCA 21; (1999) 197 CLR 611  (Gleeson CJ & McHugh J).
11 Argyle v State Administrative Tribunal  WASC 317, .
12 R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256.
13 R v Deputy Industrial Injuries Commissioner; Ex parte Moore  1 QB 456 at 488.
15 Pochi v Minister for Immigration & Ethnic Affairs (1979) 36 FLR 482, 492–493.
16 R v Deputy Industrial Injuries Commissioner; Ex parte Moore  1 QB 456 at 488.
17 T A Miller Ltd v Minister of Housing and Local Government  1 WLR 992 at 995.