Australian Guide to Legal Citation Example Essay
The uniform Evidence Act (UEA) has both substantially changed the common law and has used the common law to better the laws of evidence.1 Section 38 under the UEA ‘…concerns unfavourable witnesses will be examined’; 2 this section has replaced the common law with statutory law. This essay will focus on the recommendations of the Australian Law Reform Commission (ALRC), case law and legislation to demonstrate the effectiveness of the different approaches to the common law.
B Unfavourable Witnesses
Section 38 of the UEA made substantial changes to the common law in relation to “hostile witness”. The UEA changed the term “hostile witness” to “unfavourable witness” and abrogated the situation in which this type of witness could be cross-examined.
1 Under the Common Law
Under common law a witness can only be cross-examined by the party who has called them if the witness is “hostile”. It is a general rule that a party who calls a particular witness to give evidence may not ask that witness questions designed to discredit them.3
2 The Australian Law Reform Commission
The ALRC explained the limitations of the definition “hostile”. For example, it is rare for the court to declare a witness as hostile because the court requires something more than just unfavourable evidence. Simply stated, the higher test made it difficult in labelling a witness as “hostile”.4 The definition in turn led the law to discourage the calling of witnesses that could not be cross-examined.5
1 Evidence Act 1995 (Cth).
2 Ibid .
3 Martin Hinton and Nerissa Schwarz, ‘Practice Note: The Hostile or Unfavourable Witness’, (2008) 27, The University of Tasmania Law Review 229, 229.
4 Randall v The Queen (2004) 146 A Crim R 197
5 Hinton and Schwarz, above n 3.
The term “hostile” has been described as an “artless piece of drafting”.6 The common law provision was potentially damaging to justice in that it limited evidence that could have been significant to the case. Simpson summarises that the common law dealing with the unhelpful witness is restrictive; if the witness is not declared “hostile” or “adverse”, then counsel must generally accept the damaging evidence of the witness.7 Similarly the remedy of having a witness declared “hostile” is not easily obtained.8 Where it is not obtained the party concerned will often be left in the position of having no remedy.
The effect of s38 of the UEA demonstrates the effectiveness of evidence that would otherwise not be admitted. For example, in Randall v The Queen the Crown was obliged to call witnesses to the alleged offence, without the ability to have the witnesses declared unfavourable under s38 the Crown could not have cross-examined them, which would have had a significant, and arguable negative impact on the case.9
The case of R v Milat was also another significant case that showed the importance of s38.10 In this case the Crown was obliged to call witnesses. The Crown was then able to seek leave to cross-examine these witnesses about evidence that had been given and was unfavourable to the Crown’s case.
6 Shane Simpson, ‘The Characterisation of One’s Witnesses for the Purpose of their Impeachment (1976) 50,The Australian Law Journal 410, 412.
8 Criminal Code Act 2014 (NT); Evidence Act 1995 (Cth)
9 (2004) 146 A Crim R 197.
10 (Unreported Description, Supreme Court of New South Wales, Hunt CJ, 23 April 1996).
A Articles/ Books
Cook, Catriona et al, Laying Down the Law (Lexisnexis Orders/service, 9th ed, 2014)
Hemming, Andrew, Miiko Kumar and Elisabeth Penden, Evidence: Commentary and Materials (Lawbook Co., 8th ed, 2013)
Hinton, Martin and Nerissa Schwarz, ‘Practice Note: The Hostile or Unfavourable Witness’, (2008) 27, The University of Tasmania Law Review 229
McEwan, Alexander, ‘The Rule in Brown v Dunn in Australian Criminal Law: MWJ v R and R v Map’, (2006), 13, James Cook University Law Review, 155
Simpson, Shane, ‘The Characterisation of One’s Witnesses for the Purpose of their Impeachment (1976) 50,The Australian Law Journal 410
B Case Law
Adam v The Queen (2001) 207 CLR 96
Browne v Dunn (1893) 6 R 67
R v Ashton, Farmer and Randall  TASSC 140 (4 December 2003)
R v Milat (Unreported Description, Supreme Court of New South Wales, Hunt CJ, 23 April 1996)
Randall v The Queen (2004) 146 A Crim R 197
Criminal Code Act 2014 (NT)
Evidence Act 1995 (Cth)
D Other Sources
Australian Law Reform Commission, Australian Government, Uniform Evidence Law (30 July 2012) <http://www.alrc.gov.au/inquiries/uniform-evidence-law>
Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985)
Wroe, David and Rachel Olding, ‘Jihadist Fears Spark Review of Evidence Laws’ The Sydney Morning Herald (Sydney), 1 July 2014
Student essay: in-text citation v. footnote citation
In-Text Citation Bad
The legal writing community should stop using in-text references. Bruce v. Establishment, 301 U.S. 397, 401, 57 S. Ct. 797, 799, 81 L. Ed. 2d 1182 (1977). Footnote form should be used instead. But see The State of Legal Writing v. Bruce,196 U.S. 319, 324-325, 25 S. Ct. 264, 265-266, 49 L. Ed. 2d 494 (1905). Footnotes should be used in legal citation because they make reading easier. Bruce v. Hard Reading, 322 U.S. 497, 451, 59 S. Ct. 987, 9899, 71 L. Ed. 2d 1452 (1977). And making it easier to read legal writing should be a goal of the legal writing community. See e.g., Schiess v. Establishment, 134 U.S. 160, 171, 10 S. Ct. 384, 387, 33 L. Ed. 2d 835 (2005).
In Schiess v. Establishment, Schiess argues that legal writing should be clear, concise, simple, organized, accurate, and correct. Id.; see also Bruce v. People Against Schiess, 301 U.S. 397, 401, 57 S. Ct. 797, 799, 81 L. Ed. 2d 1182 (1977). One way for lawyers to accomplish these goals, says Schiess, is to improve legal document design. Schiess, 134 U.S. at 174 (stating that document-design principles can improve “the neatness, readability, and accessibility of their documents”); see also In re Props to Schiess, 196 U.S. 319, 324-325, 25 S. Ct. 264, 265-266, 49 L. Ed. 2d 494 (1985) (arguing that props be given to Schiess). Schiess makes new and interesting suggestions to improve document design. See generally id. He lists eight categories of modern document-design principles that can improve the “neatness, readability, and accessibility” of legal documents. Schiess, 134 U.S. at 166 (“fonts, typefaces, justification, characters per line, line spacing, tabs, headings, and numbering”).
But Schiess doesn't address one strikingly un-neat, un-readable, and un-accessible design quality of many legal documents: in-text reference citation. See, e.g., Bruce v. Every Memo Ever, 322 U.S. 497, 451, 59 S. Ct. 987, 9899, 71 L. Ed. 2d 1452 (1977); and Bruce v. Every Opinion Ever, 322 U.S. 497, 451, 59 S. Ct. 987, 989, 71 L. Ed. 2d 1452 (1976). Sometimes these citations muddle legal writing to the point of absurdity. See, e.g., Bruce v. String-Cites, 322 U.S. 497, 451, 59 S. Ct. 987, 9899, 71 L. Ed. 2d 1452 (1977); String-Cites v. Bruce, 431 U.S. 547, 549, 62 S. Ct. 457, 8204, 64 L. Ed. 2d 1643 (1979); and Bruce Getting Angry v. String-Cites, 322 U.S. 497, 451, 59 S. Ct. 987, 9899, 71 L. Ed. 2d 1152 (1977). In-text reference citations should stop.
Footnotes should replace in-text reference citations. Footnotes make documents easier to read.1 Also, footnotes do not change the readers' ability to have immediate access to authority.2 This is because using footnotes does not change the all-important complications of legal citation; using footnotes merely changes document design.3 Readers can pay attention to the content of the writing, and choose to “check” for authority only when necessary.4 Sure, a reader may have to veer an eye waayy down to the bottom of the page now and again.5 But this is far less intrusive than the inter-sentence barrage of italics, numbers, acronyms, and parentheticals caused by in-text legal citation.6 Footnotes good.
In conclusion, footnotes should replace in-text references in legal documents. Footnotes are a superior method of citation in terms of document design. Neatness, readability, and accessibility would all be improved by a move toward footnotes. The benefit to legal writing would be as great as other changes to design conventions like line spacing, typefaces, etc.
It may be that current conventions about proper footnote usage argue against this proposal. But legal writing is familiar with using discipline-specific citation methods. So why not use the same citation methods at the bottom of the page instead of all over it?
1. See, e.g., This Paragraph v. The Previous Paragraphs, 322 U.S. 497, 451, 59 S. Ct. 987, 9899, 71 L. Ed. 2d 1452 (1977).
2. Look Down Here v. Look Between Sentences, 196 U.S. 319, 324-325, 25 S. Ct. 264, 265-266, 49 L. Ed. 2d 494 (1905).
3. Win v. Win Situation, 431 U.S. 547, 549, 62 S. Ct. 457, 8204, 64 L. Ed. 2d 5643 (1979).
4. The First Amendment Protects Speech v. Carrots Are Yellow as A Matter of Law, 134 U.S. 160, 171, 10 S. Ct. 384, 387, 33 L. Ed. 2d 835 (2005) (arguing that the First Amendment proposition may require citation but most readers shouldn't be bothered with a post-sentence study of the cited authority, while, on the other hand, the carrot proposition may require some follow-up).
5. In re Come on Down, 134 U.S. 160, 171, 10 S. Ct. 384, 387, 33 L. Ed. 2d 835 (2005).
6. In re Isn't it Ridiculous, 431 U.S. 547, 549, 62 S. Ct. 457, 8204, 64 L. Ed. 2d 5643 (1979) (arguing that it is ridiculous).