Published date01 October 2017
Date01 October 2017
Subject MatterNoticeboard
Jeremy Gans
Melbourne Law School, University of Melbourne, Melbourne, Victoria, Australia
Law reform and source material
Family violence – Australia
Attorney-General’s Department, Proposed amendments to the Family Law Act 1975 (Cth) to address
direct cross-examination of parties in family law proceedings involving family violence, Public Con-
sultation Paper, July 2017, available at
This consultation paper from Australia’s federal government accompanies an ‘exposure draft’ of
proposed amendments to the nation’s family law statute, aimed at responding to concerns about parties
in family law matters cross-examining other parties. The main proposal is to ban such cross-examination
where either party has been charged with, or convicted of, a family violence offence, or where a family
violence intervention order or injunction applies to both parties. Under the proposal, courts would have
discretion to allow such cross-examination (in cases within the ban) or to prevent it (in cases outside the
ban). When parties are not legally represented, the court would be required to appoint a person to
conduct cross-examinations on the parties’ behalf. The paper contains 21 questions about the scheme,
including what additional rules are required to ensure procedural fairness to both parties.
South Australian Law Reform Institute (2017) The Provoking Operation of Provocation: Stage 1,
Report, April 2017, available at
This report by South Australia’s peak law reform body on the continuing controversy about the
homicide defence of provocation includes a recommendation that South Australia adopt a Victorian
provision stating that ‘social framework evidence’ is admissible in family violence matters where
criminal defences are raised.
DNA evidence – India
Law Commission of India, Human DNA Profiling, Report No 271, July 2017, availab le at>
This report by India’s peak law reform body accompanies a draft bill on human DNA profiling. One
chapter details the compatibility of DNA profiling with India’s legal and constitutional framework,
including the constitutional rights against compelled self-incrimination and to privacy (the subject of a
pending Supreme Court judgment), and the law on expert evidence.
Corresponding author:
Jeremy Gans, Melbourne Law School, University of Melbourne, 185 Pelham Street, Carlton, Melbourne, Victoria 3052, Australia.
The International Journalof
Evidence & Proof
2017, Vol. 21(4) 382–384
ªThe Author(s) 2017
Reprints and permissions:
DOI: 10.1177/1365712717727166
Contempt of court – New Zealand
Law Commission, Reforming the Law of Contempt of Court, Report 140, May 2017, available at¼1417>
This report from New Zealand’s peak law reform body recommends that the law on contempt of court
be consolidated in a single statute, while leaving the High Court with a ‘residual power’ to deal with
matters not covered by the statute. Recommendations include an automatic ban on publishing an arrested
person’s prior convictions and concurrent charges; a discretionary power to ‘postpone’ publication of
other material; a power to order the take-down of online mat erial within either ban; an offence of
publishing information that carries a real risk of interfering with trial by jury, with defences including
good faith contribution to discussion of public affairs; a new offence of intentional research or inves-
tigation by a juror; an offence of disclosing jury deliberations, with exceptions for misconduct or health
purposes; and the replacement of the common law on scandalising the court with an offence of publish-
ing untrue allegations against a judge or court where there is a real risk that it could undermine the public
confidence in the independence, integrity or impartiality of the judiciary or a court.
Rules of evidence – United States
Supreme Court of the United States, Proposed Amendments to the Federal Rules of Evidence, April
2017, available at
This order from the peak court of the United States of America proposes two amendments to federal
evidence law, which will operate from December unless the legislature disapproves of them. The first
change alters a hearsay exception for ‘statements in ancient documents’, which currently applies to all
documents older than 20 years, to limit it to documents prepared before 1 January 1998. A proposed
comment from the Advisory Committee on Evidence Rules explains:
The Committee has determined that the ancient documents exception should be limited due to the risk that it
will be used as a vehicle to admit vast amounts of unreliable electronically stored information (ESI). Given
the exponential development and growth of electronic information around the year 1998, the hearsay excep-
tion for ancient documents has now become a possible open door for large amounts of unreliable ESI, as no
showing of reliability needs to be made to qualify under the exception. The Committee is aware that in certain
cases – such as cases involving latent diseases and environmental damage – parties must rely on hardcopy
documents from the past. The ancient documents exception remains available for such cases for documents
prepared before 1998. Going forward, it is antic ipated that any need to admit old hardcopy documen ts
produced after January 1, 1998 will decrease, because reliable ESI is likely to be available and can be offered
under a reliability-based hearsay exception.
A second pair of changes allow self-authentication of machine-generated or copied evidence, where
the evidence is accompanied by a certification of accuracy and timely notice.
Advisory Committee on the Rules of Evidence, Spring 2017 Meeting Materials, April 2017, available
at s/advisory_committee_on_rules_of_evidence_-
These materials for a meeting of the body that advises the judiciary and legislature of the United
States on federal evidence law include: consideration of possible amendments widening the ‘residual’
hearsay exception for reliable hearsay and whether to proceed with an existing proposal to alter the
notice requirement (together with digests of case law since 2006); memoranda on proposed amendments
widening the substantive admissibility of prior inconsistent statements from testifying witnesses; a paper
on the impact of a recent Supreme Court rul ing on an existing rule prohibiting inqu iries into jury
deliberations; proposed changes to the rule on ‘bad act’ evidence in light of developments in case law;
a decision to hold a conference on expert evidence (including forensic evidence) in October 2017; and
Gans 383
memoranda on recent case law on the admissibility of electronic evidence under hearsay exceptions, and
on the confrontation clause.
Dennis I (2017) The Law of Evidence. 6th ed. (Sweet & Maxwell), ISBN: 9780414056138 (pbk), £34.
Glover R (2017) Murphy on Evidence. 15th ed. Oxford: OUP. ISBN: 9780198788737 (pbk), £37.
Munday R (2017) Evidence. 9th ed. Oxford: OUP. ISBN: 9780198788720 (pbk), £33.
Weinstein J et al. (2017) Evidence. 10th ed. Foundation Press. ISBN: 9781609303433 (hbk), $225.
Wonsowicz P (2017) Evidence. 2nd ed. Durham, NC: Carolina Academic Press. ISBN: 9781531007034
(hbk), $95.
384 The International Journal of Evidence & Proof 21(4)

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