The Evidence Act 2011 An Introduction
Evidence WHAT IS IT?
The documentary or oral statements and the material objects admissible as testimony in a court of law.
The Evidence Act The laws of evidence consist of the rules and principles applied by the courts in the process of fact-finding at trial Source - The Evidence Act: The facts in issue are those that the prosecutor must prove Admissibility of Evidence Proof
YOUR JOB Secure Evidence that is: Relevant Reliable i.e best Fair i.e lawful
RELEVANCE! Section 63 Ensure the evidence you include in any case papers you prepare only contains evidence relevant to the case. Relevant evidence is evidence which can assist in determining the existence of a fact in issue in the case. Before the hearing, tell the prosecutor of all the evidence (including that which favours the defence) whether or not it is in the case papers and no matter how remotely relevant you consider it to be.
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore: None but facts having rational probative value are admissible, All facts having rational probative value are admissible, unless some specific rule forbids.
Admissibility Evidence that is relevant must pass the following further bars to admissibility in respect of: Hearsay evidence (Part VIII, Division 1); Opinion evidence (Part VIII, Division 2); Tendency or coincidence evidence (Part VIII, Division 5); Credibility evidence (Part VIII, Division 6); Identification evidence (Part VIII Division 7); and Privileged evidence (Part IX)
DOCUMENTARY EVIDENCE You may present evidence in three ways: By giving oral evidence By producing things (real evidence) eg: a weapon used in an assault By producing documents. A document is anything in or on which information is recorded and includes an audio tape, a video tape, a computer hard drive or diskette. You must call the author of a document as a witness unless: An Act allows otherwise The document contains an admission by the defendant and the defendant has signed the document.
Proof of contents of Document - s 130 Where possible, present original documents to the court. If you cannot present the original, you may present: a photocopy a facsimile copy a carbon copy a microfilm copy. If the document is a tape recording, bring it and a transcript of it to court - section 130(1)(d) If the document is in code, eg: shorthand etc, bring it and a transcript to court - section 130(1)(d) Bring to court a printout of information stored on a computer hard drive diskette - section 130(1)(h)
Unavailable Documents If: Section 130(3) you cannot find a document it has been destroyed by someone other than you or on your behalf you cannot bring it to court, eg: it is irremovable someone else did not bring it to court in answer to a subpoena/summons You may bring to court a copy of, an extract from, or a summary of the document, or someone can give oral evidence of its contents.
Business Document Section 130(1)(f) If the document is a ledger or other business record and you cannot bring the original to court, bring: a copy an extract a summary.
Electronic Records Definition - section 144(1) Data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, print out or other output of that data Include in statement standard, procedure, usage or practice concerning the manner in which electronic records are to be recorded or stored, having regard to the type of business, enterprise or endeavour that used, recorded or stored the electronic record; and the nature and purpose of the electronic record.
Request to show Defence If you receive a request from the defendant to: produce to the defendant a document or thing make available for examination, copying or testing a document or thing arrange for someone to be at court who was involved in the production or maintenance, or who had possession, of a document or thing Immediately seek the advice of the prosecutor.
Handling Handle all documents with extreme care. Preserve them in the condition they were received. Do not interfere with any tear, pen, pencil, pin or staple, or other markings. Place documents in a clean protective covering such as a folded sheet of paper or an envelope large enough to hold them unfolded. Unfold folded documents, taking care no fresh creases are made.
Handwriting - section 162 Obtain a specimen of the suspect's handwriting which: they wrote on or before the day as the handwriting in question contains the same words as those which appear in the subject handwriting is in the same format eg: upper case printed to compare with upper case printed and is from the same source as the subject handwriting.
Specimen If you cannot obtain a specimen of the suspect's handwriting which meets the above requirements: repeat the circumstances, if known, under which the subject handwriting was written. For example, if the document was written while standing, have the suspect stand. Have the suspect sit in a comfortable position if you do not know the circumstances
Business Documents Part of your evidence may include the records of a business. These documents can be admitted as evidence by bringing to court the person who made them or someone else involved in the business to prove they are business records. If: you have a document, or a copy, extract or summary of a document, which is or was part of the records of a business; and someone recorded a fact in or on it in the course of, or for the purposes of, the business; and; the fact was recorded by someone: who knew or would have known about the fact; or who was told by someone else who knew or would have known about the fact; and the fact was not: made or obtained for a court matter; or made in connection with an investigation relating or leading to a criminal proceeding; and the fact is important to your case; observe the following procedure.
If someone cannot be found to give this evidence Section 57(1)(b) However person who recorded the statement needs to be unavailable or have no recollection of the information See Deroda [2000] 1 Cr App R 41 and Bedi [1992] 95 Cr App 21
Bank Records Bank records are no different than any other business record - section 133
Medical Evidence - section 163 Certificate or report of a medical practitioner is admissible to prove the: the medical condition of a person; the nature and extent of any injuries to that person, including the probable effects of the injuries; the cause of the medical condition or of any of the injuries; the nature of the instrument, if any, with which any of the injuries were caused; the degree of force that was used; andany other significant aspects of the injuries; and A certificate or report of an analyst or consultant in the field of bacteriology, pathology, radiology or toxicology in respect of his examination or analysis of any matter.
Procedure The document purports to be signed by the person who made it; The document contains a declaration by the person making it, declaring the facts set out therein to be true to the best of his knowledge and belief and the opinions expressed therein to be honestly held; Before the hearing at which the document is to be tendered in evidence: a copy thereof is served by or on behalf of the party proposing to tender it on the other parties to the proceedings; and none of the other parties to the proceedings have, within seven days from the service of the document, served on the party serving the document, a notice objecting to the document being tendered in evidence.
Written Statement - section 164 The statement is to be signed by the person who purports to have made it; The statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true; Before the hearing at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; and None of the other parties or their legal practitioners, within seven days from the service of the copy of the statement, serves, on the party so proposing, a notice objecting to the statement being tendered in evidence under this section.
Other Requirements If Under 18 the person s age shall be stated; If it is made by a person who cannot read it, it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read; and If it refers to any other document as an exhibit, provide a copy
Remember! Your Statements could be read in court!
Using statements and notes to give evidence - section 32 If you are aware of notes made by any witness in the case, include a copy in the case papers and bring the originals to court. To be able to refresh your memory in court from notes, you must: make the notes when the incident is fresh in your mind sign notes when the incident is fresh in your mind, as being an accurate record. If you want to read your statement when giving your evidence in chief: make and sign it soon (days, not weeks) after the incident give a copy to the defendant or to their legal representative no later than 7 days before the hearing tell the prosecutor you want to read it.
Hearsay - What is it? If someone is told or reads something which causes them to act and that act is important to your case, you may include what was told or read in a statement. Example: You search A and find drugs. You searched A because B told you A was carrying drugs. To prove your search was lawful (ie: you had reasonable suspicion) you may include in your statement what B told you because you are relying only on the fact it was said, not that it was true.
Example You attend an address in response to a disturbance. As you walk into the house, you hear a sound similar to a gunshot and see A walking out of the house. When you enter the house, you see B lying in a pool of blood. B says, "A shot me". B then dies. In this case, you might be able to give evidence of what B said to you because the circumstances at the time it was said make it highly reliable and is in the interests of justice
Identification When a witness in your case has identified a person, place or thing to you or another witness and it is important to your case, include what the witness said when making the identification in their statement and the statements of anyone else who was present. Example: While on beat duty, you are approached by A and B. A complains she has just been assaulted by an unknown male. As you are talking to A and B, C walks past. A points at C and says, "That's him! That's the fellow that punched me!" Put what A said (ie: "That's him! That's the fellow that punched me. ) in your statement and those of A and B. This also applies when a witness identifies a defendant from photographs, during an identification parade or from a crowd scene. Have the witness who identified the person, place or thing at court to give evidence.
State of Mind etc If someone tells someone else their present health, feelings, sensations, intention, knowledge or state of mind, you can prove that state of health, etc by including what was said in the statements of who said it (if that person is available) and who heard it. Example: You attend an alleged assault by a husband on his wife. She tells you he punched her to the side of her head. There are no admissions or witnesses and the wife has no visible injuries. Whilst speaking to her shortly after the alleged assault, she says, "My head is aching. I'm going to go see my doctor."
The Evidence Act Section 61 Identity of person who sent text Identity of person who received text Date, time and place
Tags - Section 138 If a tag, label or writing has been placed on something in the course of a business to describe its identity, nature, ownership, destination, origin or weight or contents, and the information is important to your case, bring the object, with the tag, label or writing attached, to court. You do not need to bring whoever put the information on the tag, label or writing. Example: You charged someone with Bring Alcohol in to a Prison after they were found bringing a bottle of Jim Beam Bourbon into the prison. To prove it was alcohol, simply bring the bottle to court, as the label states Jim Beam Bourbon and 37% alcohol. You do not have to have the contents analysed.
Issues Section 67(1): Evidence of a previous representation inadmissible: R v Kearley (1992) 2 AC 228 Exceptions section 67(3)(b): Fearful - section 67(7) - wide definition Interests of justice section 67(4) Reliability warning to jury: section 143 Notice - 21 days - section 67(5)
Identification Section 110 excludes identification evidence of an accused based wholly or partly on what a witness saw (other than picture identification evidence ), unless an identification parade has been held by police (or it would not have been reasonable to have held such a parade or the defendant refused to take part in the parade), and the identification was made without the witness having been intentionally influenced to identify the accused. Further, picture identification evidence (which includes photographic identification) adduced by the Crown is inadmissible in a number of situations (s 111), e.g. where the pictures examined suggest that the persons photographed are in police custody.
Dock ID ALRC 26 said that...the primary proposal was that no eyewitness identification evidence would be admissible for the prosecution whether dock identification or evidence of an out of court identification unless an identification parade had been held prior to the act of identification. R v Taufua (Unreported, New South Wales Court of Criminal Appeal, Priestley AP, James and Barr JJ, 11 November 1996); R v Tahere [1999] NSWCCA 170.
Photographs You can show photographs of a suspect to others to determine who to arrest, but do not show ones which suggest they are photographs of people in police custody. If the defendant refuses to take part in an identification parade or you do not conduct one you may use another form of identification evidence, such as photographs. Record in your notebook why you resorted to using photographs in preference to an identification parade. Record the conversation in which the offer was made and the refusal in your notebook and ask the suspect to read and sign it. If possible record the refusal electronically. Do not use photographs for the purpose of identification merely because they are available or using them will be easier than conducting an identification parade.
When to use Photographs Use photographs to enable a witness to identify a suspect: if the suspect refuses to participate in an identification parade if the suspect does not co-operate with the conduct of the parade eg: hides face or keeps head lowered to make identification difficult if the suspect gives conditions regarding their participation in an identification parade eg: only with a solicitor present, and it is unreasonable to wait if the appearance of the suspect has changed significantly since the time of the offence eg: now clean shaven or has a shaved head.
Procedure If a witness identifies a suspect from a photograph: write in your notebook what the witness did and the words used when it was made, and ask the witness to read, sign and date the entry include the conversation referred to in the previous sub paragraph in your statement for court, the statement of the witness, and the statement of anyone else who was present when it took place ask the witness to sign and date the photograph from which the suspect was identified retain all the photographs used in the identification and include them in your brief of evidence notify the suspect and their legal representative, in writing, of the fact the suspect was identified from photographs and allow the photographs to be inspected by them on application (provided this does not compromise your investigation).
Description Whenever a witness provides you a description of a suspect, record it in your notebook. Ask the witness read, sign and date the entry. Include the conversation in which the witness gave the description in your statement for court, the statement of the witness and the statement of anyone else who heard it. Notify, in writing, the suspect, or their legal representative, that a copy of the notebook entry is available.
Turnbull Guidelines They apply where the prosecution case is wholly or substantially based on disputed ID evidence and require the judge to: Warn jury of special need for caution before convicting on I.D. evidence and explain why (witness may be mistaken and convincing) and direct jury to consider circumstances of ID, and point out weaknesses in the evidence (e.g. distance, lighting, fleeting glance, impeded observation, had witness seen accused before, length of time between observation and ID to police, material discrepancy between witness description of accused and accused s appearance)
Turnbull Guidelines (cont) In a recognition case (i.e. where the witness knows the person he identifies) the judge should indicate that mistakes can be made in recognising friends etc. If the I.D. evidence is of good quality it can be left to the the jury once they have been directed as above If the I.D. evidence is of poor quality, the judge should withdraw the case from the jury and direct an acquittal unless there is supporting evidence. If the I.D. evidence is of poor quality but there is supporting evidence the judge, having directed the jury as above and identified the supporting evidence, can leave the evidence to the jury
Turnbull - Supporting Evidence This is evidence which makes the jury sure that the I.D. witness was not mistaken. The jury decide whether they believe the supporting evidence and whether it supports the correctness of the I.D. evidence Examples of supporting evidence are provided by evidence of another I.D. witness, false alibis and forensic evidence (but a careful direction is required when the judge directs the jury to the effect that they may be entitled to regard a false alibi as supporting evidence see lies told by the accused, below)
W witnessed a robbery in which the robber knocked the victim out from behind. The robbery took place on a dark night on an unlit street, W was standing at the other end of the street when she witnessed it and only got a fleeting glimpse of the robber s face, which was partially masked. W attended an identification parade and made a positive I.D. of D Some of the items stolen in the robbery were found in D s house. There is no other evidence against D. Which one of [a] or [b] is true? [a] The ID evidence is of poor quality so the judge must direct an acquittal [b] The judge should give the jury a Turnbull direction
A Turnbull direction is also required Where there is strong evidence that accused was with another person at the relevant time, the identities of the accused and the other person are both in issue and the ID evidence relates not to the accused but to the other When the ID witness viewed the events via a photograph or video etc In voice recognition cases (though the direction must be appropriately modified)
Failure This is likely to result in a conviction being quashed but may not do so if the evidence is of very good quality or there is no realistic possibility that the ID witness may have made a mistake
When not required ID of a motor car (though appropriate directions should be given) When the issue is whether ID evidence was fabricated and no question of mistaken ID arises When accused admits his presence at the scene of the crime but denies participation and no question of mistaken identification arises Where the jury make an ID from a photograph or video (though they should be warned about the risk of mistaken ID and the need to take care and, where appropriate, directed to consider specific matters such as any change in the accused s appearance)
Kim is charged with criminal damage. The jury watch a CCTV film of the commission of the offence, the prosecution alleging that the woman seen committing the offence is Kim. Which one of [a] or [b] is true? [a] The judge should not give a Turnbull direction in these circumstances but should warn the jury of the risk of mistaken identification and the need to take care [b] The judge should give a Turnbull direction in these circumstances
Lance is charged with burglary. Two witnesses, Colin and Ralph, identify Lance as the burglar. The defence do not assert that Colin and Ralph are mistaken but, rather, Lance asserts that Colin and Ralph are lying; that they have fabricated their I.D. evidence against him because he once got the better of them in a business deal. The judge does not give the jury a Turnbull direction and Lance is convicted. Is the following proposition true or false? The failure to give a Turnbull direction in these circumstances will clearly render Lance s conviction unsafe.
ADVOKATE A-Amount of time under observation D-Distance (maximum/minimum) V-Visibility (was it light? natural or otherwise) O-Obstructions to view (hedgerow in the way of lower half for example_ K-Known or seen before A- Any reason to remember? T - Time elapsed between first description and identification. E - Errors or material discrepancies between first description and subsequent ID.
DNA Evidence Section 154: DNA Reasonable grounds s 154(1) Connect to the offence s 154(1) Superintendent s 154(2)(a) Consent in writing s 154(2)(b) No definition of Serious Arrestable Offence s 154(3)(a) Prove or disprove involvement s 154(3)(b) Inferences s 154(7) Admissibility s 154(8)
Tendency Evidence Section 93(3) cannot be a fact in issue as part of the trial Section 96: Did a particular act or had a state of mind Substantially relevant and similar Section 97 if two or more events need to reasonably find that: Events occurred and person responsible for them Relevant Section 98: Fact relates to a matter in issue Evidence has substantial probative value Requirements pursuant to section 98(3)
Example A was charged with the murder of B, a 10 year old boy (whose body was never found). The evidence established B was abducted for sexual purposes and murdered. A was in his car at the location where B was last seen (a picnic ground), admitted speaking to B at that time and B had borrowed his fishing knife and entered his car to return it. Twelve months after B disappeared, A was convicted of abducting and raping another young boy in similar circumstances. In this case, A used his car to abduct the young boy. After being arrested for this offence, he told his wife he had been thinking of it (sexually assaulting a young boy) for the past 12 months. This evidence was admitted in A's trial for the murder of B to prove A's tendency to abduct young boys for sexual purposes. Together with the fact that A had the opportunity to abduct B and the similarities between the two abductions, it establishes it as fanciful that someone else with the same tendencies would have been present and had the opportunity to abduct and murder B.