Evidence - Summary - USYD LAWS5013 PDF

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Relevance Odgers [1.3.40] – [1.3.500] If evidence is not relevant, it is not admissible in a proceeding. s55 Relevant evidence (definition) (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to adduce evidence. Papakosmas v The Queen (1999) 196 CLR 297 (Odgers 164) – As a threshold test, relevance should require only a logical connection between evidence and a fact in issue. Smith v The Queen (2001) 206 CLR 650 – In determining relevance, there is no discretion to be exercised. “In determining relevance, it is fundamentally important to identify what are the issues at trial…the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact.” ‘fact in issue’ Odgers 165  ultimate fact in issue substantive law pleadings (civil) or charge and plea (criminal) manner in which case conducted ‘evidence…not taken to be irrelevant’ ‘…relates only to…the credibility of a witness’ - must tend to suggest that the testimony of the witness should, or should not, be relied upon, either generally or in respect of particular testimony ‘a failure to adduce evidence’ Civil proceedings, (Odgers 168) – failure to adduce particular evidence, may lead to adverse inferences being drawn where such evidence would reasonably have been expected - Jones v Dunkel (1959) 101 CLR 298 – this inference may be that the evidence if adduced would not have assisted the party’s case. Criminal proceedings Accused Dyers v the Queen (2002) 210 CLR 285 – Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. Azzopardi v The Queen (2001) CLR 50 – Dunkel inference may only arise in most unusual circumstances, e.g. facts that would explain/contradict the inference that prosecutor wishes jury to draw, lie with in knowledge of particular person that defence has not called, a comment may be available on the failure to call that witness. Prosecution Dyers v the Queen (2002) 210 CLR 285 – for prosecution to decide what evidence it will adduce, judge may, but not obliged to question prosecution to discover reasons for declining to call a particular person. Only if judge has made an inquiry, and the answer considered insufficient, can the judge tell the jury it would have been reasonable to expect prosecution would call an identified person. Opinion evidence 1

Case Name Smith v The Queen (2001) 206 CLR 650

Facts/Issues The fact in issue was whether the accused was the person in surveillance photo robbing bank. Two police officers gave evidence that the accused was the person in the photo – relevance of that evidence.

Decision The evidence was held inadmissible as it was not relevant. The jury had access to the same items as the police in forming their opinion (seeing the accused and the photograph), thus the evidence if accepted, could not rationally affect the jury’s decision.

s56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. s135 General discretion to exclude evidence (further see week 12) The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. Smith v The Queen (2001) – if “evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received.” Absence of objection (Odgers 178) R v Chai [2002] NSWCCA 512 - Failure by a trial judge to allow inadmissible evidence may give rise to a miscarriage of justice notwithstanding the absence of objection – this implicitly recognises that evidence may be regarded as inadmissible, notwithstanding the absence of objection. s57 Provisional relevance (1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if it is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding. (2) Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed. s58 Inferences as to relevance (1) If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity. (2) Subsection (1) does not limit the matters from which inferences may properly be drawn.

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Proof Odgers [1.4.60] – [1.4.320] s140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. NB Civil proceeding = proceeding other than criminal proceeding, Criminal proceeding = prosecution for an offence (not a tax offence) Dictionary part 1

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 – “the ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.” Setlsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 – NSWSC Spigelman CJ suggested “the predominant position in Australian case law is that a balance of probabilities test requires a court to reach a level of actual persuasion” citing the next case: Briginshaw v Briginshaw (1938) 60 CLR 336 – “[proof] cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality…it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.” s141 Criminal proceedings: standard of proof (1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt. (2) In a criminal proceeding, the court is to find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities. Thomas v The Queen (1960) 102 CLR 584 – If the tribunal of fact has a doubt which it considers reasonable regarding the guilt of the accused, it must find the accused not guilty. Green v The Queen (1971) 126 CLR 28 – A reasonable doubt is a doubt which the tribunal of fact entertains in the circumstances. Circumstantial Evidence Peacock v The King (1911) 13 CLR 619 – Where jury relies on circumstantial evidence, guilt should not only be a rational conclusion, but also the only rational conclusion that can be drawn from the circumstances.

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Case Name Shepherd v The Queen (1990) 170 CLR 573

Facts/Issues Clarified Chamberlain – does circumstantial evidence have to be proven beyond reasonable doubt.

Decision If the fact is essential to the inference of guilt, it must be proved beyond reasonable doubt, (i.e. if the circumstantial fact is a link in a chain). If however a combination of circumstantial facts lead to the inference of guilt (i.e. strands in a cable) each individual fact does not have to be proved beyond reasonable doubt, but as a whole they must point to guilt beyond reasonable doubt.

s142 Admissibility of evidence: standard of proof (1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding: (a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or (b) any other question arising under this Act; have been proved if it is satisfied that they have been proved on the balance of probabilities. (2) In determining whether it is so satisfied, the matters that the court must take into account include: (a) the importance of the evidence in the proceeding; and (b) the gravity of the matters alleged in relation to the question.

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Direct Evidence

Broad Categories of Evidence

Source: Testimonial Evidence

Part 2.1 ss12-46

Source: Testimonial Part 2.1 ss12-46 Evidence Circumstantial Evidence Source: Documentary Evidence

Part 2.2 ss47-51

Source: Other, e.g. exhibit

Common (exhibits)

law

Other Statutes Part 2.3 ss52-54 1. Part 2.2 Documents Odgers [1.2.4700 – 1.2.5700] The part is about adducing evidence - that is the form it can be tendered to the court, as opposed to admissibility. s51 Original document rule abolished Abolishes Common Law rule that the contents of a document may only be proved by tendering the original document. s167 Requests may be made about certain matters A party may make a reasonable request to another party for the purpose of determining a question that relates to: (c) the authenticity, identity or admissibility of a document or thing. s193 Additional powers (1) The powers of a court in relation to: (a) the discovery or inspection of documents; and (b) ordering disclosure and exchange of evidence, intended evidence, documents and reports; extend to enabling the court to make such orders as the court thinks fit to ensure that a the parties can adequately…inspect documents…. s47 Definitions (1) document in question is a reference to a document as to the contents of which it is sought to adduce evidence. (2) copy of a document in question includes a reference to a document that is not an exact copy but is identical in all relevant aspects

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s48 Proof of contents of documents (1) A party may adduce evidence of contents of a document in question by tendering the document in question or by: (a) adducing evidence of an admission made by another party as to contents (b) tendering a document that (i) is/purports to be a copy and (ii) produced/purports to has been produced by a device that reproduces the contents of documents. (c) if the document in question is an article where words are recorded and reproduced as sound – tendering a document that is/purports to be a transcript (d) document is an article which information is stored in a way that it cannot be used unless a device is sued to retrieve tendering a document that was/purports to have been produced by use of the device; (e) tendering a document that: (i) forms part of record of or kept by a business and (ii) is/purports to be a copy/extract/summary of the document in question. (f) if it is a public document a document that is/;purports to have been printed by Govt Printer, authority of Govt or by authority of an Australian Parliament. (2) subsection (1) applies to a document in question whether the document in question is available to the party or not (3) If party adduces evidence under (1)(a) 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 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/extract/summary of document in question or (b) adducing from a witness evidence of the contents of the document in question. “document” defined in dictionary (Part 1) (a) anything on which there is writing; or (b) marks, figures, symbols….(c) from which sounds, images or writings can be reproduced…(d) a map, plan, drawing or a photograph Clause 8, Part 2 Reference to document includes: (a) any part of document (b) any copy, reproduction or duplicate (c) any part of such copy, reproduction or duplicate. Unavailability of documents Clause 5, part 2 of Dictionary Document or thing taken not to be available if: (a) it cannot be found after reasonable inquiry (b) destroyed by party otherwise than in bad faith (c) impractical to reproduce (d) could render a person liable to conviction (e) not in possession and (i) cannot be obtained by any judicial procedure or

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(ii)it is possession of another party to the proceeding concerned who knows or might be reasonably be expected to now that evidence is likely to be relevant (iii) in possession of a party when party knew/reasonably expected to have known that such evidence was likely to be relevant in the proceeding. Transcripts of tapes Pre-1995 Evidence Act Butera v DPP (1987) 164 CLR 180 – Butera and four other accused and convicted of trafficking heroin. Evidence included a recorded conversation, some of which was in another language. Two interpreters gave oral evidence of translation, prosecution’s translation admitted into evidence. Held: Primacy must be given to the tape, transcript should only be an aid to the tribunal of fact. There may be unusual cases where the transcript may be adduced (e.g. foreign language, and transcript would be too much if not put in writing), but normally the transcript should not be adduced – USED AS AID ONLY. Combined effect of Butera and s48(1)(c) R v Cassar, R v Sleiman [1999] NSWSC 436 - The combined effect of s 48(1) and those cases is, so far as is presently relevant, as follows: (a) A document that purports to be a transcript of words recorded on a tape is admissible to prove the conversation: s48(1)(c); (b) No oral or other evidence is necessary to validate such a transcript, it being sufficient that it purports to be a transcript of the words: s48(1)(c); (c) Where a tape is indistinct, a transcript may be used to assist the jury in the perception and understanding of what is recorded on the tape: Butera at 187; (d) Where a tape is indistinct, a transcript made by an "ad hoc expert", being a person qualified only by having listened to the tape many times, may be used for this purpose. That is particularly so where the tape needs to be played over repeatedly before the words uttered could be made out unaided: Menzies at 49 cited in Butera at 188; (e) If there is doubt or disagreement whether the transcript accurately deciphers the sounds captured on the tape, the transcript should be used only as an aide-memoire. I take that to mean that the jury is to give priority to what they hear (or do not hear) on the tape, if that is not consistent with what appears in the transcript: Butera at 188; (f) The jury may have the transcript before them when this tape is played over in court: Eastman at 200; (g) The jury should be informed, when the transcript is tendered, as to the use which they may make of it: Eastman at 220; (h) A transcript may be rejected or its use limited pursuant to ss135-137 (discretion to exclude/limit evidence, unfairly prejudicial etc). s49 Documents in foreign countries s48(1) not to apply to documents in foreign countries unless (a) party who adduces evidence has served on each other party a copy of the document at least 28 days before it is to be adduced or (b) the court directs that it is to apply. s50 Proof of voluminous or complex documents (1) court may direct party may adduce evidence in form of a summary if: (a) application is made and

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(b) it is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question. (2) Court may only make such a direction if party seeking to adduce evidence in summary form has: (a) served on each part a copy of the summary that discloses the name and address of the person who prepared the summary; and (b) given each other party a reasonable opportunity to examine/copy documents in question. (3) opinion rule does not apply to evidence adduced under this section. Part 2.3 Other Evidence s52 Adducing of other evidence not affected This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence. This section essential preserves laws and rules of practice in respect of evidence adduced other than by witness testimony or document, e.g physical objects admitted as exhibits. An item admitted as an exhibit may be sent out with the jury and the juror an examine them in a reasonable manner. Kozul v The Queen (1981) 147 CLR 221 – Jury were allowed to take revolver into jury room to test it. Defendant argued unintentionally shot gun, as received a blow to hand. Question is whether or not the test was a reasonable manner. HC Held that: while the trial judge erred in suggesting jury to conduct such a test, he corrected himself by instructing them that such a test would not be reliable. As such there was no miscarriage of justice. Note the jury must use their common sense. They cannot substitute their inexpert evidence for expert evidence. However, they may hold the revolver whilst feeling a blow to the hand. s53 Views (1) A judge may, on application, order that a demonstration or inspection be held. (2) Judge not to make order unless satisfied that: (a) 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, Judge is to take into account the following: (a) whether parties will be present (b) whether the demonstration/experiment/inspection will in court’s opinion, assist in resolving issues of fact or understanding of evidence (c) danger that it may be unfairly prejudicial, misleading, confusing or cause undue waste of time (d) in case of demonstration – the extent to which it will properly reproduce conduct/event to be demonstration (e) in case of inspection – extent to which place/thing has materially altered (4) Court is not to conduct an experiment in course of its deliberations (5) section does not apply in relation to an inspection of an exhibit by the court.

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s54 Views to be evidence The court may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection. Pledge v RTA; Ryan v Pledge [2004] – Negligence claim, trial judge’s inspection of road was upheld. The road area was complex and difficult to understand from the evidence. s54 elevates an inspection to the level of evidence as the tribunal of fact can draw inferences from the inspection.

Facilitation of Proof Odgers [1.4.900] – [1.4.2340] s171 permits a person giving evidence in relation to a document or thing, to do so by affidavit, or if it is in relation to a public document, by a written statement. s172 evidence may include evidence based on knowledge and belief of the person who gives it, or on information that person has. s173(1) a copy of the affidavit or statement must be served on each party a reasonable time before hearing s173(2) if another party so requests, the party who tenders the aff...