LAW OF EVIDENCE. LEC Summer 2017/2018 Week 4 Documentary and Real Evidence. A. Kuklik.

Transcription

1 1 LAW OF EVIDENCE LEC Summer 2017/2018 Week 4 Documentary and Real Evidence

2 2. FORMS OF EVIDENCE This Week 2 (2) Documentary evidence (3) Real evidence Topic: The form in which the contents of documents may be adduced in evidence. The adducing of other forms of evidence (excluding testimonial and documentary evidence). Issues: Use of and tendering of documentary evidence, use of real evidence and demonstrations in and out of court. Desired Outcomes: The students recognize that prior to considering the admissibility of evidence it is necessary to consider the form in which evidence may be adduced. Particularly important are the rules governing the adducing of oral evidence and the various means by which information stored in electronic media is able to be adduced in court.

3 This Week 3 2(2) Documents EA ss NAB v Rusu (1999) 47 NSWLR 309 ACCC v Air New Zealand Ltd (No1) [2012] FCA (3) Real evidence KOP Ch 4 EA ss R v Milat (NSWSC Hunt J at CL 12/4/96 unreported) (KOP [4.40]) Evans v The Queen (2007) 235 CLR 521 (KOP [4.50]) R v Skaf (2004) 60 NSWLR 86 (KOP [4.60]) Kozul v The Queen (1981) 147 CLR 221 (KOP [4.80])

4 Documents Butera v DPP (1987) 164 CLR 180 (KOP [3.50])* 4 ls a pre evidence act case considering approach to transcripts of sounds The High Court considered that a transcript be best understood not as evidence of the relevant sounds (and therefore the jury should be instructed that the transcript cannot be used as a substitute for listening to the tape), but as a means of assisting in the perception and understanding of the evidence tendered by the playing over of the tape... (an aid memoire)

5 Documents Butera v DPP (1987) 164 CLR 180 (KOP [3.50])* 5 A document that purports to be a transcript of a recording is admissible: s 48(1)(c) No oral evidence is necessary to validate the transcript: s 48(1)(c) If the tape is indistinct a transcript can be used to assist the jury understanding it: Butera If the tape is indistinct, a transcript made by an ad hoc expert may be useful: Butera If there is doubt or disagreement as to whether the transcript accurately deciphers the sounds on the tape, it should only be used as an aide memoire That means, the jury should prioritise what they hear on the tape over what they read on the transcript, where any inconsistency: Butera

6 Documents Butera v DPP (1987) 164 CLR 180 (KOP [3.50])* 6 A jury can have the transcript before them when they listen to the tape. They should be told the use that they can make of it: Eastman A transcript can be rejected or its use limited: ss

7 Section 47 - Definitions Documents 7 (1) A reference in this Part to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence. (2) A reference in this Part to a copy of a document in question includes a reference to a document that is not an exact copy of the document in question but that is identical to the document in question in all relevant respects.

8 Documents Section 48 - Proof of contents of documents 8 (1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods: (a) adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question, (b) tendering a document that: (i) is or purports to be a copy of the document in question, and (ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents,

9 Documents Section 48 - Proof of contents of documents 9 (c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)-tendering a document that is or purports to be a transcript of the words, (d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it-tendering a document that was or purports to have been produced by use of the device, (e) tendering a document that: (i) forms part of the records of or kept by a business (whether or not the business is still in existence), and

10 Documents Section 48 - Proof of contents of documents 10 (ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary, (f) if the document in question is a public document-tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed: (i) by a person authorised by or on behalf of the government to print the document or by the Government Printer of the Commonwealth or by the government or official printer of another State or a Territory, or (ii) by the authority of the Government or administration of the State, the Commonwealth, another State, a Territory or a foreign country, or (iii) by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament.

11 Documents Section 48 - Proof of contents of documents 11 (2) Subsection (1) applies to a document in question whether the document in question is available to the party or not. (3) If the party adduces evidence of the contents of a document under subsection (1) (a), the evidence may only be used:(a) in respect of the party s case against the other party who made the admission concerned, or(b) in respect of the other party s case against the party who adduced the evidence in that way. (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 from or summary of, the document in question, or (b) adducing from a witness evidence of the contents of the document in question.

12 Documents Section 48 - Proof of contents of documents 12 Notes : 1 Clause 5 of Part 2 of the Dictionary is about the availability of documents. 2 Section 182 of the Commonwealth Act gives section 48 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

13 Documents Foreign Media v Konstantinidis [2003] NSWCA 161 (KOP [3.60])* 13 Translations Different approaches were taken to proving the contents of a tape in Greek by adducing evidence of a transcript of a translation of the tape from Greek to English. Trial judge admitted English transcripts of translation from Greek ln this case there was no dispute as to the accuracy of the relevant translation. The issue was simply whether the English transcript should be admitted into evidence Handley JA considered that the transcript was admissible under ss 29 and 48 Tobias JA considered that s 48(1)(c) allows a transcript of an audio tape in English to be proof of contents of tape. Tobias accepted that read literally, this sub-section refers only to tendering a document that purports to be a transcript of the words of the broadcasting i.e. Greek language. But rejected this for practical considerations

14 Documents Foreign Media v Konstantinidis [2003] NSWCA 161 (KOP [3.60])* 14 Tobias JA agreed with Handley JA, but with the proviso that if requested, the judge should have directed that the English transcript only be used as an aide memoir (did not happen here) Giles JA considered that neither ss 29 or 48 applied as the transcripts were not explanatory material or transcripts of the Greek words (literal approach). Neither provision was needed and the respondent was entitled to prove the meaning in English in the manner he chose Odgers disputes all approaches in Foreign Media - he considers that s 48(1)(c) properly understood does not apply to a translation of words in a tape - but is rather caught by the opinion rule, and would not be admissible unless it satisfies an exception to this rule. lf admissible under this rule, the Court could allow the evidence to be tendered, subject to Butera

15 Documents Section 49 - Documents in foreign countries 15 No paragraph of section 48 (1) (other than paragraph (a)) applies to a document that is in a foreign country unless: (a) the party who adduces evidence of the contents of the document in question has, not less than 28 days (or such other period as may be prescribed by the regulations or by rules of court) before the day on which the evidence is adduced, served on each other party a copy of the document proposed to be tendered, or (b) the court directs that it is to apply. Note : Section 182 of the Commonwealth Act gives section 49 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.

16 Documents 16 Section 50 Proof of voluminous of complex documents In the matter of Idylic Solutions [2012] NSWSC 568 at [63]* ASIC civil penalty prosecution for a New Zealand and Australia based ponzi scheme. ASIC wanted to summarise into spreadsheets all of data of investments and returns to show the money going from clients to the directors and then to show the money flowing back (and therefore the fact that it wasn t a genuine investment).

17 Documents 17 Section 50 Proof of voluminous of complex documents There are three matters to be determined for the purposes of the s 50 application: whether the relevant spreadsheets and tables are summaries of information contained in the underlying documents for the purposes of s 50 (rather than, for example, comprising conclusions or statements of opinion); whether the volume and/or complexity of the underlying documents is such that it would not otherwise be possible conveniently to examine the evidence; and whether a reasonable opportunity has been given to any other party to the litigation to examine or copy the documents in question (and in that regard the fact that there might between now and the trial be a reasonable opportunity to examine or copy the documents is strictly not to the point). In the matter of Idylic Solutions [2012] NSWSC 568 at [63]*

18 Documents 18 Section 50 Proof of voluminous of complex documents There are three matters to be determined for the purposes of the s 50 application: 1. Are the relevant spreadsheets and tables summaries of information contained in the underlying documents, or do they include conclusions or statements of opinion has there been some form of analysis done on the underlying material? 2. Would it be possible/practical conveniently to examine the evidence how voluminous/complicated/fiddly is the data 3. Have you given the other parties a reasonable opportunity to examine or copy the documents in question? usually give them all of the data (and in that regard the fact that there might between now and the trial be a reasonable opportunity to examine or copy the documents is strictly not to the point). In the matter of Idylic Solutions [2012] NSWSC 568 at [63]*

19 Documentary evidence 19 Section 58 Inferences as to relevance lf a question arises as to relevance, court may examine it and draw a reasonable inference from it including as to authenticity For example: St George Bank statement - with logo e.t.c - can draw inference it is authentic from the nature of the document itself. At first blush, this seems straight forward: in determining the relevance of an object, reasonable inferences may be drawn from it. This appears to extend to the authentication of the document.

20 Documentary evidence 20 Section 58 Inferences as to relevance However, in National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; [1999] (KOP [3.80]), Bryson J observed: a question of authenticity is not a question as to the relevance of documents within subs 58(1), which treats authenticity as part of the material on which relevance may be determined. Bryson J considered that authenticity should be distinguished from relevance, and that on this approach, a document could not authenticate itself. Before a document is admitted into evidence, there should be an evidentiary basis for finding that it is what it purports to be.

21 Documentary evidence 21 Section 58 Inferences as to relevance This approach was doubted by: Madgwick J in Lee v Minister for Immigration & Multicultural & Indigenous Affairs* Gyles and Weinberg JJ in O Meara v Dominican Fathers* BUT approved by the NSW Court of Appeal in Daw v Toyworld (NSW) Pty Ltd.* However, that was an obiter dictum.

22 Documentary evidence 22 Section 58 Inferences as to relevance Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [2012] FCA 1355 (KOP [3.90]) Perram J reviewed the authorities and concluded that Rusu was plainly wrong, holding that a court may draw reasonable inferences from a document for the purposes of determining that the authenticity of the document may reasonably be inferred (and the document was, accordingly, relevant). His Honour provided a list of propositions which distinguished authenticity from admissibility and which held that the issue of authenticity does not arise for the tribunal of law s consideration. His Honour s reasons were compelling and in accordance with the documented purpose of s 58.

23 Documentary evidence Section 58 Inferences as to relevance 23 Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [2012] FCA 1355 (KOP [3.90]) 1. There is no provision of the Evidence Act which requires that only authentic documents be admitted into evidence. The requirement for admissibility under the Act is that evidence be relevant, not that it be authentic. On some occasions, the fact that a document is not authentic will be what makes it relevant, i.e., in a forgery prosecution. In other cases, there may be a debate as to whether a particular document is or is not authentic, for example, a contested grant of probate where it said that the testator s signature is not genuine. 2. In cases of that kind, the issue of authenticity will be for the tribunal of fact to determine. In cases heard by a judge alone, this will be the judge at the time that judgment is delivered and the facts found. In cases with a jury, it will be the jury. 3. The question of what evidence will be admitted is a question of law for the tribunal of law, which will be the Court.

24 Documentary evidence Section 58 Inferences as to relevance 24 Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [2012] FCA 1355 (KOP [3.90]) 4. Since authenticity is not a ground of admissibility under the Evidence Act, the issue of authenticity does not directly arise for the tribunal of law s consideration at the time of objections to evidence. 5. What does arise for its consideration is the question of relevance under s 55. If the evidence is relevant it is admissible: s 56. It will be relevant under s 55 if the evidence is such that if it were accepted, [it] could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. 6. At that point, the question of a document s authenticity is relevant only to the tribunal of law s consideration of relevance under s 55. It has no other role. 7. In that inquiry, the question for the tribunal of law is not whether the document is authentic, but whether receipt of the document could, to paraphrase s 55, rationally affect the assessment of the probability of a fact.

25 Documentary evidence 25 Section 58 Inferences as to relevance Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [2012] FCA 1355 (KOP [3.90]) 8. If there is raised a question about the authenticity of a document (and assuming that, if authentic, it would otherwise be relevant to an issue) then there will be an issue in the proceedings about its authenticity. This will be a question for the tribunal of fact to resolve, if the document is admitted. 9. The question for the tribunal of law, by contrast, will be whether the document is relevant to a fact in issue under s 55. That is, the question will be whether the document can rationally affect the assessment of the probabilities of the fact, including its authenticity. 10.What materials may be examined in answering this question? The answer is provided by s 58 the document itself.

26 Documentary evidence 26 Section 58 Inferences as to relevance This spread of authority appears to leave this issue and the operation of s 58 a little uncertain: Perram J s decision appears to have been followed by Forrest J in Matthews v SPI Electricity Pty Ltd (Ruling No 35)* and ASIC v Active Super Pty Ltd (in liq) [2015] FCA 342,* but some judges still follow Rusu: In the Matter of Maiden Civil Pty Ltd [2012] NSWSC 1618, [23].* It is suggested that the approach taken by Perram J is the correct one, and that his reasoning is sound, but whether his decision prevails remains to be seen. Finally, it should be noted that this provision does not deal with the drawing of inferences from the object or document in order to establish some other precondition to admissibility, but only relevance. However, s 183 can be relied upon to allow for such other inferences to be gained from a document or thing, for example those relating to the application of the hearsay exception in s 69.

27 Real evidence 27

28 Real evidence 28 2(3) Real evidence KOP Ch 4 EA ss R v Milat (NSWSC Hunt J at CL 12/4/96 unreported) (KOP [4.40]) Evans v The Queen (2007) 235 CLR 521 (KOP [4.50]) R v Skaf (2004) 60 NSWLR 86 (KOP [4.60]) Kozul v The Queen (1981) 147 CLR 221 (KOP [4.80])

29 Real evidence 29 Section 52 Adducing other evidence not affected In general the Evidence Act does not attempt to regulate the way that evidence other than witnesses and documents is adduced. This is left to the common law

30 Section 53 Views Real evidence 30 (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,

31 Real evidence 31 Section 53 Views (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.

32 Real evidence Section 54 Views to be evidence 32 The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection. What happens on a view now constitutes evidence : R v Milat These sections have nothing to do with the admissibility/relevance of the view or demonstration These sections do not apply to in-court demonstrations: Evans v The Queen (2007) 235 CLR 521 (KOP[4.50]). They are governed by relevance, and ss 135 and 137

33 Real evidence R v Milat (unreported, NSWSC 12 April 1996) (KOP [4.40]) 33 Milat charged with murder of seven backpackers whose bodies were discovered in the Belanglo State Forest. Both sides sought a view do that the jury could see the remoteness of the area and see where the property and ballistics evidence was. Trial judge needed to ensure that s 53 was satisfied - that accused had reasonable opportunity to be present Judge considered that whilst security requirements would be greater, Milat could still attend if he wanted to, although accused didn't want to. But his representatives will be attending - and if anything happens which needs to be explained, they will be able to talk to Milat about that. He was not required to be there. Was only view of static site Court considered impact of potential alterations to the site e.g. changes in density of foliage and terrain changes. Considered that they would not affect the probative value of the inspection

34 Real evidence R v Milat (unreported, NSWSC 12 April 1996) (KOP [4.40]) 34 Court also satisfied that it and the jury would obtain assistance in understanding the evidence from the site inspective Application granted - the public were excluded because of the intense interest and need to protect jurors anonymity

35 Real evidence Evans v The Queen (2007) 235 CLR 521 (KOP [4.50]) 35 There was video footage at the scene wearing certain clothes and saying some words. Accused was then required to wear the same clothes as found in his home - overalls, balaclava; as well as to talk View distinguished from demonstration or reproduction Section 53 does not apply to what happens in the courtroom and therefore s 192 need not be complied with Here there was no demonstration, just method of highlighting resemblance In court demonstrations are subject to ss 55, 135, 137

36 Real evidence R v Bilal Skaf (2004) NSWCCA 37 (KOP [4.60]) 36 Bilal Skaf and his brother, Mohammed, convicted for being part of a gang that raped several young women in Sydney On appeal all grounds failed apart from that of jury misconduct: the judge ordered a retrial The day before the verdict, two jury members (including foreman) visited the scene of the crime to look at the lighting in the park at night for minutes engaged in a view and conducted experiments This was revealed to an unrelated solicitor who reported it to the court

37 Real evidence R v Bilal Skaf (2004) NSWCCA 37 (KOP [4.60]) 37 This conducted amounted to lack of procedural fairness because the evidence could not be tested or rebutted Could not exclude the possibility that the lighting condition were different that those on night of assault and court could not be satisfied that this did not affect the verdict Misconduct caused trial to miscarry

38 Real evidence Kozul v R (1981) 147 CLR 221 (KOP [4.80]) 38 The jury were given a revolver to examine, which was the weapon the accused said accidentally discharged The issue was to what extent they could "experiment" with the revolver to decide if it could accidentally discharge when its holder was hit Gibbs CJ said they could use their common sense, including by handling it and testing it, to decide this lf an issue was the weight of something, a juror can pick it up; if it's whether A is more voluminous than B, jury can pour liquid from A to B, etc.) But experiments on evidence that effectively supply new evidence are not permissible

39 Real evidence Kozul v R (1981) 147 CLR 221 (KOP [4.80]) 39 The judge invited the jury to discover the extent to which a blow to the hand might cause a finger to move, whether by reflex or spontaneous, this amounted to gathering new evidence, and in circumstances where the variables cannot be controlled by the defence. Gibbs CJ said that was an error. This was largely or entirely cured by the judge s directions noting the limitations of such an experiment (e.g. that such experiments are of little assistance in considering how a person would have reacted when under stress of the moment etc.) Jury can test evidence but not experiment with it

40 Problem 40 Fred is being tried for burglary. The prosecution claims that Fred climbed a tree adjacent to the premises, and from there clambered in through a 2 nd storey window. The defendant denies doing this, and claims he would be incapable of doing it. Fred s counsel requests that the court go on a view to see the tree and the window.