SUMMARY LAW OF EVIDENCE INTRODUCTION

Transcription

1 SUMMARY LAW OF EVIDENCE INTRODUCTION What is Evidence? Evidence is the material ffered in curt during a trial fr the purpse f enabling the finder f fact t reach a decisin n the issues in dispute. (Rberts) The law f evidence is part f adjectival law, meaning law that regulates the prcedure fr enfrcement and prf f legal rights and liabilities. Surces f the Law f Evidence Cases befre Queensland Curt (including cases where State Curt is exercising federal jurisdictin): Cmmn law EAQ EAC, s 5 Miscellaneus legislatin (e.g. UCPR, CLA, PIPA, PPRA) Originating legislatin fr ffence (e.g. Criminal Cde) Case befre Federal Curt: Cmmn law EAC EAQ (see s 79 Judiciary Act and s 4 EAC) Miscellaneus legislatin NOTE: Statute will always trump the cmmn law t the extent f incnsistency (but cmmn law infrms the statute) SUMMARY OF ANSWERING QUESTIONS 1. Jurisdictin: Qld r Cth, civil r criminal, legislatin r cmmn law? a. Burden f prf b. Standard f prf 2. Facts in issue 3. Available evidence hw d we prve the existence f this: a. Real? b. Witness? c. Dcumentary? 4. Relevance f evidence t a fact in issue (*threshld issue)! if relevant, prima facie admissible 5. Grunds fr inadmissibility a. Grunds f unreliability i. Hearsay ii. Opinin (except experts) b. Grunds f tendency t mislead i. Main issue is weighing lgical prbity against prejudicial effect. ii. Nt cmpetent r cmpellable iii. Prpensity / Character c. Grunds f public plicy i. Privilege ii. iii. Withut prejudice statements Illegally btained etc. 1. Unfairness discretin 2. Public plicy discretin 6. Weight t be affrded t the evidence a. Direct r circumstantial b. Credibility f witness c. Incnsistent statements d. Expert required

2 THE ADVERSARIAL SYSTEM Pre-Trial Prcedure: The rules f evidence apply thrughut legal prceedings, nt just at trial. Prceedings at Trial The party wh bears the nus f prf begins. Usually this will be the prsecutr (criminal) r the plaintiff (civil). There are tw pssible variatins n the standard rder: 1) Submissin f N Case t Answer 2) Electin t Call n Evidence The Rle f Judge and Jury General rule: judge (legal questins), jury (factual questins) See Jury Act 1995 ss 32 and 33; Criminal Cde ch 62, div 9A, s 615; CLA s 73; UCPR rr 471-5; QLRC 66. In practice, these functins can becme blurred. E.g. judge may be required t cnsider cnflicting factual allegatins t determine a questin f law This is nrmally dne n vir dire Vir Dire Judge must determine the existence f facts, which cnstitute a cnditin precedent t the receptin f evidence. Judge determines these preliminary facts in a pre-trial directins hearing r n vir dire A trial within a trial Each side is entitled t call evidence and crss-examine witnesses called by the ther side. It is fr the party wishing t have the evidence admitted t satisfy the curt f the facts cnstituting a cnditin precedent t its admissin. The standard is the BOP: Wend v The Queen (1963) HCA ADMISSIBILITY Admissibility is a questin f law Primary Questins: 1) Is it relevant t a material fact in issue? 2) Is it admissible (even if relevant)? 3) Hw much weight is the curt likely t give t it (even if admissible)? Relevance Only relevant evidence is admissible. Cmmn Law Test: Evidence is relevant if it culd ratinally affect, directly r indirectly, the assessment f the prbability f the existence f a fact in issue : Gldsmith v Sandilands (2002) ALJR 1024, 1025 (Gleesn CJ) Directly relevant evidence itself bears n the prbable existence r nn-existence f that fact. Indirectly relevant evidence affects the prbative value f evidence said t be directly relevant t a fact in issue. Legislative Test: see ss 55-6 EAC Sectin 55: The evidence that is relevant in a prceeding is evidence that, if it were accepted, culd ratinally affect (directly r indirectly) the assessment f the prbability f the existence f a fact in issue in the prceeding. In particular, evidence is nt taken t be irrelevant nly because it relates nly t: (a) the credibility f a witness; r (b) the admissibility f ther evidence; r (c) a failure t adduce evidence. Sectin 56: Except as therwise prvided by this Act, evidence that is relevant in a prceeding is admissible in the prceeding. Evidence that is nt relevant is nt admissible. Relevance Relevance is nt a fixed cncept. It can nly be expressed in general terms as a relatinship between things. Tends t prve, disprve r render prbably the past, present r future existence f a fact. The fact that the evidence pssesses sme cnceivable relevance is nt sufficient fr admissibility; it must pssess sufficient relevance t justify cnsideratin by the curt: AG v Hitchcck Discretin Exclusinary discretin: evidence, which is therwise admissible, may be excluded by virtue f judicial discretin. In criminal cases, judge has a general discretin t exclude legally admissible evidence: Ibrahim v The King; Pavic v R Inclusinary discretin: evidence that is inadmissible may be admitted by virtue f judicial discretin cnferred by statute r curt rule, e.g. UCPR 394. Weight Nt all admissible evidence has the same weight; i.e. persuasive value r extent t which it may be used in deciding the case.

3 METHODS OF PROOF TYPES OF JUDICIAL EVIDENCE The types f evidence by which facts may be prved are knwn cllectively as judicial evidence: 1. Testimny What? Statements f a witness made rally in curt and presented as evidence f the truth f what s/he states. Direct testimny = statement by a witness f facts f which s/he has direct persnal r first hand knwledge. Wh? As a general rule, all persns are qualified in law t give testimny (exceptins). Usually given after swearing an ath n the bible. But can give slemn affirmatin: s17 Oaths Act Hearsay TEST: Hearsay is inadmissible: Subramaniam v Public Prsecutr [1956] 1 WLR 965, 970 1) Any ut f curt assertin, made either rally r in writing (pssibly by cnduct); and 2) Offered as evidence f the truth f its cntents. Three bjectins: Nt under ath May be distrted by the reprter Cannt be subject t crss-examinatin 3. Original Evidence TEST: Evidence f an ut f curt statement tendered ther than as evidence f the truth f its cntents. Relevant purpse made be: T shw the maker s state f mind f the maker (e.g. victim was fearful) T shw the listener s state f mind f the listener (e.g. misrepresentatin case) A dcument tendered as real evidence (e.g. a will in dispute) A dcument which is in dispute (e.g. a cntract a party denies exists) 4. Dcumentary Evidence Dcuments prduced fr inspectin by the curt, either as items f: 1) Real evidence; 2) Hearsay; r 3) Original evidence. Usually the dcument is incrprated in the witness s testimny f a witness. The witness is asked t lk at the dcument and asked if s/he made r acknwledged it. If s, the dcument can becme evidence in its wn right. If nt, the dcument wuld be inadmissible hearsay. 5. Real Evidence Material items, which played an actual and direct part in the event r transactin giving rise t the litigatin, which are prduced fr inspectin by the curt t cnvey a firsthand impressin evidence btained frm a thing E.g. a knife r gun. Usually, the bject is identified in the testimny f a witness. In this way, the bject s relevance can be explained in rder t fund its admissibility. The thing is used t prve its existence r t allw the curt t bserve and draw its wn cnclusins. Sme cmmentatrs include all demnstrative evidence generically as real evidence E.g. maps, charts, views Hwever, it is better t distinguish real evidence frm items used slely fr demnstratin purpses 6. Primary Evidence Evidence f the best r highest kind as ppsed t secndary evidence E.g. the riginal f a dcument as ppsed t a cpy f a dcument. A party relying n the cntent f a dcument must prduce the riginal unless a statute prvides therwise. Nte: s97 EAQ, which applies t Part 6 (dcuments used testimnially), permits cpies prvided they are prperly authenticated.

4 DOCUMENTARY EVIDENCE Dcuments are subject t the same general rules that apply t ral testimny; they must be relevant and nt breach any exclusinary rule. There are sme additinal rules that apply nly t dcuments and gvern hw a dcument must be prved. WHAT IS A DOCUMENT Queensland Sectin 3 EAQ (a) any part f a dcument (b) any bk, map, plan, graph r drawing (c) any phtgraph (d) any label, marking r ther writing which identifies r describes anything f which it frms part, r t which it is attached (e) any disc, tape, sund track r ther device in which sunds r ther data are embdied s as t be capable f being reprduced (f) any film, negative, tape r ther device in which visual images are embdied and capable f reprductin (g) any ther recrd f infrmatin Cmmnwealth Part 1 (Dictinary) (a) anything n which there is writing (b) anything n which there are marks, figures, symbls r perfratins having meaning (c) anything frm which sunds, images r writings can be reprduced with r withut the aid f anything else (d) a map, plan, drawing r phtgraph Public Dcument : Part 1 (Dictinary) A dcument that frms part f the Crwn s recrds r any recrds f the gvernment f a freign cuntry. Nte: definitin given as generally the dcuments created and retained fr the purpse f the public inspecting and using them: R v Halpin [1975] QB 907 USE OF A DOCUMENT A dcument may be used in three ways: 1) Fr a hearsay purpse T be admissible, it must fall within ne f the exceptins t the hearsay rule (see Mdule 7) Example: an appintment bk frm a GP tendered t prve the P attended the surgery n a particular day 2) Fr a nn-hearsay purpse T be admissible, must be tendered ther than t prve that the statement it cntains is true and ther than because it has direct legal effect. Example: a dcument cntaining a prir incnsistent statement. Ges t credit. 3) Fr its direct legal effect Where legal rights and bligatins are created by a dcument, and the dispute is abut thse rights r bligatins, the dcument has direct legal effect. A party tendering a dcument n the basis that it has direct legal effect must be able t prve it has legal effect. RULE AS TO PROOF Cmmn Law A dcument must be authenticated via ral testimny befre it can be tendered as evidence. Can be dne via: The authr f the dcument A witness t the signing f the dcument Smene familiar with the authr s writing r an expert. Executin Where a dcument must be executed (e.g. signed r signed and sealed), the apprpriate methd f executin depends n the methd prescribed by law fr that type f dcument. This distinctin generally depends n whether the dcument is public r private. Public dcuments RULE: Generally nt necessary t prve executin f a public dcument. Queensland judicial ntice t be taken, withut evidence, f the fllwing State Public Seal: s41 Signatures f public fficehlders (e.g. gvernrs, minister, judge, curt fficial): s42 Every Act, statutry instrument etc.: s43 NOTE: cpies f public dcuments can be admitted: s51 Cmmnwealth Dcuments purprting t be gvernment dcuments are presumed t be what they purprt: s153 Dcuments published by authrity f Parliaments presumed t be thse dcuments: s143 Evidence f a Cth recrd r a State public recrd may be adduced by prducing a dcument that purprts t be such a recrd and t be signed r sealed: s155

5 Evidence f a Cth dcument can be adduced by prducing a dcument purprting t be that as certified by a Minister r a persn wh might reasnably be suppsed t have custdy f the dcument: s155a A dcument that purprts t be a cpy f a public dcument and t have been sealed and certified is presumed t be unless the cntrary is prved: s156 Private dcument RULE: Party seeking t rely n it must satisfy the curt it has been duly executed. Can demnstrate due executin by calling as a witness the signatry, a witness t the signature, r persns wh can identify the handwriting (familiarity r expertise). Where there is a dispute abut handwriting, can cmpare disputed handwriting with writing prvide t the satisfactin f the judge t be genuine : s 59 EAQ Attestatin Prf f attestatin = prf that a dcument has been prperly witnessed. Mainly applies t wills due executin must be prved by calling r btaining a stat-dec. frm an attesting witness If all witnesses are dead, insane, utside the jurisdictin r cannt be traced, then prf f the handwriting f at least ne f them is required. Sectin 63 EAQ: In a civil prceeding, if a persn wh made a previus representatin is nt available t give evidence abut an asserted fact, the hearsay rule des nt apply t: (a) evidence f the representatin that is given by a persn wh saw, heard r therwise perceived the representatin being made; r (b) a dcument s far as it cntains the representatin, r anther representatin t which it is reasnably necessary t refer in rder t understand the representatin. Primary Evidence COMMON LAW RULE ( Best/riginal evidence rule ): a party relying n a dcument fr any purpse ther than identifying it must prduce the riginal t the curt. Queensland This rule, which required the prductin f riginal dcuments, has been cnsiderably relaxed. Varius types f cpies can be tendered: ss 44, 46-49, 51-53, 55-58, 68-69, and 74 Examples: Sectin 84(b) EAQ: cpy f entry in bk f accunt can be evidence f the entry and f the matters, transactins and accunts recrded in it. Sectin 97 EAQ: where a statement in a dcument is prpsed t be given as evidence, it can be prved by prductin f that dcument r a cpy f it authenticated in a manner as the curt may apprve Sectin 116 EAQ: cpies by phtgraphic r ther machine can be used as evidence. Curt has discretin t reject a reprductin if it cnsiders it inexpedient in the interests f justice t d s as a result f any reasnable inference drawn by the curt frm the nature f the reprductin: s124 EAQ In estimating the weight t be attached t a reprductin, regard shuld be had t the necessity fr making the reprductin, its accuracy, r any incentive the witness may have t tamper with the dcument: s125 EAQ Cmmnwealth Ablishes the primary evidence rule: ss EAC Cntents f a dcument can be prved by secndary evidence (e.g. cpy r ral evidence): s 48 EAC REAL EVIDENCE Real evidence can be used t describe all evidence ther than ral testimny and dcuments used testimnially (s52 EAC). E.g. bjects r places that are bserved by the jury, either in r ut f curt. Must be relevant t the facts in issue and sufficiently reliable fr the curt t act upn. Generally, this will depend n the testimny f the witnesses wh were respnsible fr creating r discvering the real evidence. Weight is a matter fr the jury. TYPES OF REAL EVIDENCE 1) Objects Jury is nt just restricted t lking at real evidence. Can tuch and handle material bjects BUT they cannt be treated in a manner that in effect creates new evidence: Kzul v R (1981) HCA E.g. a physical item that appeals directly t the senses f curt, such as a knife, trn clthing r ther exhibits. 2) Recrdings Sund and visual recrdings fall within definitin f a dcument in the Evidence Acts: Butera v DPP (1987) Can be used testimnially (i.e. where the truth f the wrds spken is relied n) r as a cpy f real evidence (e.g. where being used like phtgraph f an bject). The evidence is the sund/images captured, rather than in the tape itself. Generally, the transcript f the tape may nt be taken int the jury rm: Butera

6 At cmmn law the recrding must be authenticated befre being intrduced int evidence. NOTE: The general cmmn law rules referred t abve is altered under s 48 EAC the general effect is t allw a transcript t be tendered as evidence and t bviate the requirement fr authenticatin. 3) Maps/Charts Maps and charts are admissible t assist the curt, prvided the cntents have been prved by ther evidence. Cth evidence can be given in the frm f charts, summaries r ther explanatry material if likely t aid the cmprehensin f the evidence: s29(4) EAC Qld can admit in evidence a map, chart r dcument r survey where there is a questin as t the territrial limits r situatin f an area r place, r distance between tw places: s65 EAQ 4) Phtgraphs Phtgraphs are classed as bth dcuments and real evidence. Threshld test fr admissibility is relevance. 5) Physical appearance, demeanur These are real evidence and are matters fr the tribunal f fact. E.g. bservatins f a P s injuries in the curse f a trial. VIEWS AND DEMONSTRATIONS Views Visit t inspect a relevant place allwed at judge s discretin. Queensland At cmmn law, the view (in itself) des nt cnstitute evidence. It is mre a prcess, merely fr the purpse f enabling the curt t understand the issues raised r fllw the evidence mre easily. If there is a cnflict between what is bserved n a view and ral testimny, the latter is t be preferred: see s52 Jury Act 1995 (Qld) and r478 UCPR. Cmmnwealth Jury can draw any reasnable inference frm what it hears, sees r ntices at a view: ss53-4 EAC Milat (1996): On a vir dire t see whether a view shuld be held at Balangl State Frest, it was held that ss 53 EAC applied. The curt must therefre be satisfied that: The parties were given reasnable pprtunity t be at the view; and If the accused chses nt t attend, the view remains sufficiently distinct frm the trial s as nt t require the presence f the accused t be effective. Demnstratins A demnstratin may take place inside r utside the curt. Nt evidence in themselves, but if an eyewitness cnducts the demnstratin under ath, that is evidence in itself and will be admissible (subject t ther exclusinary rules). If there is an bjectin (e.g. due t difficulties f replicatin), the party seeking t cnduct the demnstratin must satisfy the curt the demnstratin will be an accurate replicatin and any prejudicial impact n the demnstratin is minimised: Sica case Nte: There is a distinctin between a view and the taking f evidence by visual bservatin, demnstratin r recnstructin: R v Alexander [1979] VR 615 Befre a view r demnstratin it is essential, that there is agreement between the parties r evidence befre the tribunal f fact that the cnditins presently existing are as they were at the time in questin, r that at least any variatins nw existing are defined in a manner enabling them t be assessed and accunted fr, and are nt such as might render the view, experiment, demnstratin r recnstructin impractical r dangerus, [in the sense that there is] a real risk that the curse f justice may be perverted rather than advanced. If witnesses attend and re-enact, it will be a demnstratin, which equates with the leading f evidence. The parties must therefre cnsent t the view /demnstratin: Sctt & Numurkah Crpratin (1954) 91 CLR 300 at 313 Sctt & Numurkah Crpratin Facts: P leased part f twn hall frm D. P sued D fr breach f cntract and nuisance regarding nise frm ther parts f the building. D wanted a view and judge visited. Hwever, P did nt agree t bservatins being part f the evidence. Judge said this culd nt be taken int accunt, but it had been able t cnclude that the band was nt the nuisance it was claimed t be. Held: HCA said the visit went beynd a view t a demnstratin. If witnesses attend and re-enact, this is a demnstratin that equates with the leading f evidence. Since this had been dne withut the Ps cnsent, trial judge was crrect nt t take evidence int accunt. Held that a trial judge is at liberty t use results f view fr purpses f understanding questins raised, t fllw the evidence and apply it, but nt t put the result f a view in place f evidence.