Evidence Act 1995 NSW: Case Study on Admissibility of Evidence

This case study examines the admissibility of a barman's log entry in an assault trial under the Evidence Act 1995 (NSW). The defense seeks to admit the log, which states that the victim initiated the fight, but the barman is untraceable. The analysis considers sections of the Evidence Act, including Section 78 concerning the admissibility of evidence for understanding a matter or event, and Section 76, the Opinion Rule. Key cases like Lightgow City Council v Jackson and Sherrard v Jacob are referenced to determine whether the log entry constitutes an admissible opinion or an inadmissible representation. The study also discusses the reliability of evidence under Section 165 of the Evidence Act and the directions given to juries regarding unreliable evidence. Ultimately, the study assesses whether the log entry can be considered reliable and admissible in court, given the barman's unavailability and the nature of the statement.

Running head: EVIDENCE ACT
Evidence Act
Name of the Student
Name of the University
Author Note

1EVIDENCE ACT
Lightgow City Council v Jackson1 talks about the admissibility of an evidence in
accordance with section 78 of the Evidence Act, 19952. The mentioned section provides that the
evidence must be such that “it is necessary to obtain an adequate understanding of the perception
of the matter or event”. Whenever a rule is applied on an opinion, it cannot be done so by
excluding the opinion which is crucial to the event, that is, the evidence of the person seeing or
hearing or perceiving a certain matter. The case dealt with the admissibility of an impugned
representation and whether the representation led to the conclusion of causation. Another issue
discussed in the landmark judgment was whether the impugned representation made an opinion.
To make an opinion or representation admissible in court, it is important that 78(a) is satisfied.
That is, the person making the opinion and his form, what he saw, construed from the context of
the situation and what he saw, heard or perceived from the “matter or event”. The court held that
section 78 should be read as an exception to the rule of exclusion and it should not be read as to
nullify any rule of exclusion.
Section 76, Evidence Act, 19953- Opinion Rule-This rule states that any evidence of an opinion
will not be admissible in court to prove existence of any fact and also about the existence of a
matter about which the opinion was expressed. Under common law, there is specific definition of
‘opinion’ but in the case of Allstate Life Insurance Co. v Australia And New Zealand Banking
Group Ltd4, this definition was altered to include “an inference” which has been obtained
through observation of communicable data. Court had made significance reliance on the
definition of “opinion” in the Lightgow City Council v Jackson case.
1 (2011) 244 CLR 352; [2011] HCA 36.
2 Evidence Act, 1995 sec 78
3 Evidence Act, 1995 sec 76
4 1996 [64] FCR 73

2EVIDENCE ACT
Sherrard v Jacob [1965] NI 151 5talks about the admissibility of opinion of “lay persons”. This
case held that opinion expressed by a person based on his human experience, like the age, mental
condition of the person can be admissible in court but that does not save he opinion from being
challenged in cross-examination.
Section 165 of the Evidence Act6 talks about the unreliability of an evidence and the
instances when the evidence cannot be tenable. This unreliability applies in cases of admission of
evidence. Evidence might be unreliable for a number of reasons, like the inability to recall the
facts, poor light, bad memory, mental state etc. This is an exception to the rules of evidence and
the admissibility of opinion.
Directions to Jury: in the cases of application of an evidence under section 165 of the
Evidence Act, a warning is given to the jury to ensure that no vexatious evidences are admitted
in court. Sometimes the opinions given are inadmissible in court for want of credibility and
authenticity. The directions given to the jury to ensure that proper checking is required before
taking into consideration any evidence is a common law mandate. Australian Law is heavily
influenced by common law and therefore the legislations are to safeguard the interest of the
parties and preventing the jury from admitting into court any evidence which is not reliable.
Evanescent to remember was a term specifically coined by judges in the landmark
judgment of Lightgow City Council v Jackson to strike out instances when the evidence given
were not reliable enough and had faded from the memory of the witness. Admissibility concerns
itself with the idea to deal with evidences that could not be recollected by the person giving the
evidence and thus affects the admissibility of the same.
5 Sherrard v Jacob [1965] NI 151.
6 Evidence Act, 1995 sec 165

3EVIDENCE ACT
Applying the above rules of Evidence Act to the present case, it is important to
understand the facts of the case in the light of admissibility of the opinion given by the barman
on duty. The question in the present case is regarding the admissibility of the log record which
was supposed to be maintained by the barman. In the given case, Simon is accused of assault at a
bar which is owned by Fred. As per the instructions of the bar owner, it was the duty of the
barman to enter in his log any major incident that occurs. The barman has made an entry in his
own handwriting in the log but he has been untraceable ever since. The entry in the log book
says:
“10 February 2018, 11.30: Fight broke out between Mark and Simon. Mark pulled the first
punch not Simon”
From this statement, it is not clear when Simon assaulted Mark or not because the log only
mentions about the first punch that was initiated by Mark. Applying section 76, it is clear that
this impugned representation cannot be considered evidence and cannot be made admissible in
court because the representation does not constitute an opinion.

4EVIDENCE ACT
BIBLIOGRAPHY
Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 5) (Allstate
Judgment No 32) (1996) 64 FCR 73
Evidence Act, 1995
Lightgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36.
Sherrard v Jacob [1965] NI 151