70109 EVIDENCE
70109 EVIDENCE ... 1
LECTURE 1: INTRODUCTION TO EVIDENCE ... 3
INTRODUCTION TO EVIDENCE... 3
UNIFORM EVIDENCE LAW... 4
LECTURE 2: TYPES OF EVIDENCE: DOCUMENTARY EVIDENCE & REAL EVIDENCE ... 5
GENERAL POWERS OF THE COURT ... 5
TYPES OF EVIDENCE ... 5
SUMMARY ... 10
LECTURE 3: WITNESSES; COMPETENCE & COMPELLABILITY; EXAMINATION OF WITNESSES ... 11
WHO CALLS A WITNESS? ... 11
COMPETENCE AND COMPELLABILITY ... 12
EXAMINATION OF WITNESSES ... 18
SUMMARY ... 22
LECTURE 4: PRIVILEGE AND RIGHT TO SILENCE ... 22
PRIVILEGE ... 22
WHAT ARE THE DIFFERENT TYPES OF PRIVILEGE? ... 23
THE RIGHT TO SILENCE ... 30
LECTURE 5: RELEVANCE ... 33
RELEVANCE: FIRST THRESHOLD TO ADMISSIBILITY ... 34
TEST FOR RELEVANCE ... 34
LIMIT ON WHAT IS REGARDED AS IRRELEVANT EVIDENCE ... 36
SUMMARY ... 40
LECTURE 6: HEARSAY EVIDENCE: EXCLUSIONARY RULE; FIRSTHAND HEARSAY; MORE REMOTE EXCEPTIONS ... 41
BACKGROUND ... 41
WHAT IS HEARSAY EVIDENCE? ... 41
THE HEARSAY RULE – EXCLUSION OF HEARSAY EVIDENCE ... 41
EXCEPTIONS TO THE RULE AGAINST HEARSAY ... 45
SUMMARY ... 53
LECTURE 7: CREDIBILITY EVIDENCE: EXCLUSIONARY RULE AND EXCEPTIONS ... 57
WHAT IS CREDIBILITY EVIDENCE? ... 57
THE CREDIBILITY RULE ... 57
EXCEPTIONS TO THE CREDIBILITY RULE ... 60
SUMMARY ... 65
LECTURE 8: HEARSAY FOR A NON-HEARSAY PURPOSE; ADMISSIONS; CHARACTER EVIDENCE ... 66
THE RULE AGAINST HEARSAY ... 66
ADMISSIONS ... 69
WHAT IS CHARACTER EVIDENCE? ... 74
LECTURE 9: OPINION EVIDENCE; EXCLUSIONARY RULE AND EXCEPTIONS ... 78
WHAT IS OPINION EVIDENCE ... 78
THE OPINION RULE ... 79
THE BASIS RULED ... 87
DISCRETIONARY EXCLUSION OF EVIDENCE ... 88
THE ULTIMATE ISSUE ... 88
SUMMARY ... 88
LECTURE 10: TENDENCY AND COINCIDENCE EVIDENCE: EXCLUSIONARY RULES AND CONDITIONS FOR ADMISSIBILITY ... 89
WHAT IS INFERENTIAL REASONING? ... 89
EVIDENCE FOR OTHER PURPOSES ... 90
COMMON LAW VS EVIDENCE ACT ... 91
SECTION 101: FURTHER REQUIREMENTS ON PROSECUTION IN CRIMINAL PROCEEDINGS ... 95
SUMMARY ... 98
LECTURE 11: DISCRETIONARY/MANDATORY EXCLUSION OF EVIDENCE; JUDICIAL WARNINGS, COMMENTS AND DIRECTIONS ... 99
DISCRETION TO EXCLUDE EVIDENCE ... 99
DISCRETION TO LIMIT THE USE OF EVIDENCE ... 103
JUDICIAL WARNINGS AND DIRECTIONS ... 103
JUDICIAL COMMENTS... 105
SUMMARY ... 106
LECTURE 1: INTRODUCTION TO EVIDENCE
INTRODUCTION TO EVIDENCE
Elements (Facts in issue) Actus reus
- The accused (A) - Did an act
- Causing death of victim (V) Mens rea
- Intent to kill - Intent to inflict GBH
Primary Facts
A (accused) stabbed V (victim) 20 times in the chest
Evidence
- CCTV recorded the crime (documentary evidence) - W (person) witnessed the
crime (witness evidence) - Murder weapon (real
evidence)
PROOF AND PRESUMPTIONS
The “common law adversarial system of legal procedure is not directed to the establishment of truth”. The adversarial system is concerned with “procedural truth” or “legal truth” (Former CJ Spigelman, Bar News, Winter 2011, 101)
“A court of law is not engaged in ascertaining ultimate verities: it is engaged in determining what is the proper result to be arrived at, having regard to the evidence before it” (Viscount Simon LC in Hickman v Peacy [1945] AC 304, cited in Spigelman)
WHAT IS THE BURDEN OF PROOF?
- ‘Proof’ refers to the fact finding process in litigation
- One party to the proceeding has the burden (or onus) of proof
- The burden of proof refers to the obligation on a party to prove the facts
- As a general rule the party that brings (civil) or prosecutes (criminal) the matter bears the burden of proof and must meet the required standard of proof
- The party who brings (civil) or prosecutes (criminal) a matter must adduce sufficient evidence to meet the required standard
WHO BEARS THE BURDEN OF PROOF?
Civil Matters: plaintiff
Criminal matters: Crown (prosecution)
“Throughout the web of the English criminal law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt’ Woolmington v DPP (1935) AC 462
EVIDENTIAL BURDEN OR LEGAL BURDEN?
- Legal burden: the party who will lose the case if a proposition is not proven to the required standard o In criminal matters, the legal burden is held by the prosecution
- Evidential burden: the obligation to produce sufficient evidence on a particular proposition to render that issue worthy of consideration
o The Queen v Khazaal [2012] HCA 26
o Strong v Woolworths Ltd [2012] HCA 5, per Heydon J at [50]-[54]
o Braysich v The Queen (2011) 243 CLR 434; [2011] HCA at [33]-[36]
STANDARD OF PROOF – CIVIL MATTERS What is meant by “on the balance of probabilities”?
- Briginshaw v Briginshaw (1938) 60 CLR 336 – this case involved a petition for divorce based on adultery. Adultery was not a crime at the time (although it was characterised as quasi-criminal behaviour) but a presumption of innocence applied.
- Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 – this case involved deceit over the worth of a business and the subsequent rescission of a contract.
These cases stand for the proposition that the standard of proof must be met “clearly”, “strictly” or “with certainty”. That is, the
“balance” of probabilities must have actually shifted so that the trier of fact must feel an “actual persuasion” of the occurrence or existence of particular facts before they can be found.
STANDARD OF PROOF – CRIMINAL MATTERS What is meant by “beyond reasonable doubt”?
- Trial judges have been strongly advised by the HCA to refrain from explaining to a jury what is meant by the term
“beyond reasonable doubt”: see Green v The Queen (1971)
- “Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt… If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice’ Miller v Minister of Pensions [1947]
- Circumstantial evidence:
o Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521
o Shepherd v The Queen [1990] HCA 56; (1990 170 CLR 573; per Dawson J at 578 WHAT IS JUDICIAL NOTICE?
The doctrine of judicial notice operates with respect to facts that are so obvious, well known or indisputable that the party which relies upon them is relieved of the obligation to lead evidence to prove the fact.
S 144(1) Proof is not required about knowledge that is not reasonably open to question and it—
(a) Common knowledge in the locality in which the proceeding is being held or generally, or
(b) Capable of verification by reference to a document the authority of which cannot reasonably be questioned UNIFORM EVIDENCE LAW
- Evidence Act 1195 (Cth), Evidence Act 1995 (NSW)
- Evidence Act 2001 (Tas), Evidence Act 2004 (Norfolk Island), Evidence Act 2011 (ACT), Evidence Act 2008 (Vic), Evidence (National Uniform Legisation) Act 2011 (NT)
- Does not include QLD, SA and WA which have their own rules of evidence or where the common law continues to apply
‘[89]… As an Act which had as one of its purposes the clarification and simplification of evidentiary questions, it has had at best mixed success. Far too often this Court has had to decide questions arising under it, for which in the past, common law, or earlier well understood statutory provisions provided the answer. The number and complexity of these cases exceed what might ordinarily be expected in respect or even a new and significantly changed legislative regime’ Dhanhoa v R [2003] HCA per Callinan J
UNIFORM EVIDENCE ACT – OUTLINE
Thresholds to admissibility:
- Relevance - Hearsay - Opinion
- Tendency and coincidence
Every piece of evidence needs to be rigorously assessed to decide whether or not it is admissible. Some things are clearly admissible, some things are clearly inadmissible. The parties in dispute need to know the rules of evidence very thoroughly – often what distinguishes them is the depth of their knowledge about the rules. One party will try to find a rule that will get a piece of evidence admitted; the other party will try to find a rule to have it excluded. Arguments can sometimes be very powerful both ways, and the judge makes the ultimate decisions on admissibility.
LECTURE 2: TYPES OF EVIDENCE:
DOCUMENTARY EVIDENCE & REAL EVIDENCE
GENERAL POWERS OF THE COURT Evidence Act 1995 (NSW)
Section 11 General powers of a court
(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment
(2) In particular, the powers of a court with respect to abuse of process in proceeding are not affected
Unless the Evidence Act explicitly prevents a Judge from doing so, a trial judge can depart from the Evidence Act at any time to ensure fairness and to prevent the court from having its process abused
TYPES OF EVIDENCE
Evidence is adduced in three forms:
1. Oral testimony (witnesses) (Evidence Act Pt 2.1) 2. Documents (Evidence Act Pt 2.2)
3. Other evidence (or Real Evidence) (Evidence Act Pt 2.3)
Adduce Evidence “what we put before the court and how we get it before the court”
DOCUMENTS
Evidence Act 1995 (NSW) Part 2.2 Documents
47 Definitions
48 Proof of contents of documents 49 Documents in foreign countries
50 Proof of voluminous or complex documents 51 Original document rule abolished
- Evidence Act made significant changes to the common law regarding how evidence could be adduced PROOF OF CONTENTS OF DOCUMENTS
S 48 Proof of contents of documents
- Tender the document itself 48(1) - Tender a copy of the document s 48(1)(b)
- Adduce evidence as to the contents of a document s 48(1)(a) - Tender a transcript of a document s 48(1)(c)
- For voluminous documents, it is also possible, with leave of the court, to tender a summary of a document s 50
S 51 Under the Evidence Act, the focus is on the relevance for admissibility The tribunal of fact (court) is able to make its own conclusion surrounding the authenticity of a document (s 51 – abolishes original document rule)
S 57(1) Provides for a finding of provisional relevance if it is reasonably open for a court to find authenticity S 58(1) Allows the court to make a reasonable inference as to authenticity
WHAT IS A DOCUMENT?
The Dictionary of the Evidence Act (Part 1) defines ‘document’ to mean any record of information, and includes:
(a) Anything on which there is writing, or
(b) Anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or
(c) Anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or (d) A map, plan, drawing or photograph
Note: See also clause 8 of Part 2 of this Dictionary on the meaning of “document”
REFERENCES TO DOCUMENTS
Dictionary, Part 2, Clause 8 References to documents
A reference in this Act to a document includes a reference to:
(a) Any part of the document, or
(b) Any copy, reproduction or duplicate of the document or of any part of the document, or (c) Any part of such a copy, reproduction or duplicate
UNAVAILABILITY OF DOCUMENTS
Dictionary, Part 2, Clause 5: Unavailability of Documents and Things
For the purposes of this Act, a document or thing is taken not to be available to a party if and only if:
(a) It cannot be found after reasonable inquiry and search by the party, or
(b) It was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person, or
(c) It would be impractical to produce the document or thing during the court of the proceeding, or
(d) Production of the document or thing during the course of the proceeding could render a person liable to conviction for an offence, or
(e) It is not in the possession or under the control of the party and:
i. It cannot be obtained by any judicial procedure of the court, or
ii. It is in the possession or under the control of another party to the proceeding concerned who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding, or
iii. It was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding
R v Cassar & Sleiman (No 28) [1999] NSWSC 651
Voir dire “to say truth”
Question: Whether the running sheet was admissible to prove the contents of the original motel registration form?
What did the Court decide?
1. Registration form not a document available to Crown within meaning of s 48(4) The running sheet was admissible (in an edited form) pursuant to s 48(4)(a)
2. Police officer should have leave to use running sheet to try revive memory (s 32)
3. Police officer would give oral evidence of what he saw in the registration form pursuant to s 48(4)(b), using the running sheet to refresh his memory
4. Registration form was a business record – s 69 and therefore an exception to the hearsay rule. If the contents of the form could be proved, that would stand as evidence that the vehicle was at the motel.
Once s 48 is satisfied and if s 69 applies, then the representations stated in the business record can be relied on as facts and are admissible in the proceeding
PROOF OF CONTENTS OF DOCUMENTS
S 48(4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding by:
(a) Tendering a document that is a copy of, or an extract form or summary of, the document in question, or (b) Adducing from a witness evidence of the contents of the document in question
OTHER EVIDENCE (REAL EVIDENCE) Evidence Act 1995 (NSW)
Part 2.3 – Other evidence
52 Adducing of other evidence not affected 53 Views
54 Views to be evidence
WHAT IS OTHER (REAL) EVIDENCE?
There are two kinds of other evidence:
1. Exhibits (physical object tendered as evidence) and
2. Views (demonstrations, experiments or inspections of locations)
Section 52 makes it possible to adduce evidence other than through witness testimony or through documents. This includes physical, tangible objects, such as the murder weapon, or a faulty product that is central to the facts in issue
WHAT IS MEANT BY A VIEW?
S 53 Views
(1) A judge may, on application, order that a demonstration, experiment or inspection be held (2) A judge is not to make an order unless he or she is satisfied that:
a. the parties will be given a reasonable opportunity to be present, and b. the judge and, if there is a jury, the jury will be present
(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following
a. Whether the parties will be present
b. Whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence
c. The danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time
d. In the case of a demonstration – the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated
e. In the case of an inspection – the extent to which the place or thing to be inspected has materially altered (4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations (5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury CASES INVOLVING VIEWS
R v Milat (1996) (unreported)
Ivan Milat was tried and found guilty for a series of murders Backpacker murders (1989-1993) - Ivan Milat unsuccessfully opposed the view Visit to Belangalo state forest
- Given the opportunity to attend an inspection of the crime scene (didn’t end up going matter of strategy of defence)
- Court isn’t allowed to go on a view/inspection if it would be unfairly prejudicial If it would not accurately reproduce the conduct or event OR the place being inspected has been materially altered
- Jury was made aware of changes to the area in the forest
- S 54 Jury is allowed to form a reasonable inference based on what they see and hear during a view - Forbidden for the judge and jury to conduct experiments of their own s 53(4)
R v Bilal Skaf, R v Mohammad Skaf [2004] NSWCCA 37
Note: The court is not permitted to go outside the evidence presented and to act upon information privately obtained which the parties have no chance of combating or commenting upon
- As it was a sexual assault case, the trial judge gave his usual warning to the members of the jury at the conclusion of the trial. As part of this warning, the judge instructed the jury not to “go and do your own research”
- But despite the warning, the jury foreman rang another juror the night before the verdict was delivered and they went to the park where the alleged rape occurred
- The who jurors went to Gosling Park for about 20 minutes to check the lighting conditions (an issue that had been causing some concern to the jury)
FACTS:
- Bilal and Mohammad were brothers and convicted on charges of aggravated sexual assault - High profile cases and media scrutiny ongoing interest in their prison conduct
- Appealed their convictions on many grounds, most of which failed but some succeeded
- Ground 6: Trial miscarried by reason of juror misconduct Found that there must be a new trial
- 18 months after the guilty verdict Juror spoke to a solicitor at a BBQ Juror queried irregularities of their deliberation and solicitor reported this to the authorities
- Foreman and other juror went to make decisions about the lighting and positioning in the park
- What the jurors didn’t know is that considering the graphic nature of the crime, the local council had made significant improvements to the lighting in the park
- Evidence of jury deliberations is inadmissible in a trial
- Court considered that the jury doesn’t all have to be present for deliberation to occur Supreme Court of Appeal (NSW) decided that even though the jury had been sent to consider their verdict Experiments could not be considered as part of the jury’s deliberations Evidence was admissible and ground of appeal could succeed - Jurors had conducted experiments to attempt to create evidence that had not been adduced at the trial could
have caused unfair prejudice or deny their right to natural justice
- Court had no way of knowing the effect of this evidence only option was a mistrial Evans v R [2007] HCA 59
- A view is the same as an inspection and they are limited to visits outside the courtroom
- If s 53 applied to conduct in the courtxroom it would be otiose (superfluous/ineffective) to the application of s 53 because in most litigation the judge, jury and parties will be present
- S 53 concerns “places” to be inspected and points against the application of s 53 to conduct in the courtroom - All but the simplest experiments are impossible to perform in court, again pointing against the application of s 53 - Demonstrations are frequently given by witnesses to support oral evidence and it would be cumbersome if s 53 had to
be complied with every time that happened FACTS:
- Evans was on trial for armed robbery
- Robber was filmed on security cameras wearing a balaclava, sunglasses and overalls (voice recordings too)
- Prosecutor requested that Evans put on the clothing items, and walk around saying the words the robber said during the robbery Appeal to the HCA
- Raises a question as to whether s 53 should apply to an ‘in court demonstration’?
- [193] Heydon J A view is an inspection of a scene or object without seeing it in operation or witnesses providing further explanation of the events. A demonstration is a view incorporating an explanation by the witness of an incident or a demonstration of a machine or other object in operation. A reconstruction goes further and is an attempt to recreate the incident in full or in part with witness testimony
- What Evans had been asked to do was not considered to be a demonstration or reconstruction. Hedyon J stated that the common law terms fall within the expressions used within the evidence act
SUMMARY
A court can determine the authenticity, identity, relevance or use of a document or thing by:
- Hearing testimony from a witness about the document or thing (the witness does not have to have written or made the item, but can testify as to its provenance)
- Drawing inferences from the document or thing
The contents of a document may be proved without presenting the document itself:
- By presenting copies of the document (copying, business records or public records)
- If original document is not available, by a copy or through testimony of witness who saw document POINTS TO NOTE
To note in relation to specific categories of evidence:
- Visual summaries of oral evidence, such as charts and diagrams can be used if they accurately summarise the oral evidence and are useful to the court
- Demonstrations and inspections can be ordered at discretion of the judge, where this is likely to assist court and procedural fairness to parties can be ensured
- Experiments can be performed by witnesses, if the judge is of opinion that this will assist the court, but court is not permitted to conduct experiments during deliberations
