WEEK 1 CONTENT: SOURCES OF EVIDENCE LAW PDF

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Summary

Sources of Evidence Law:
- Obtain Legislation
- Evidentiary Laws and Rules: Sources and Jurisdiction
- Nature and Functions of Evidence
- The Adversarial System...

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WEEK 1 CONTENT: SOURCES OF EVIDENCE LAW Obtain Legislation Key Legislative Materials: - Evidence Act 1955 (Cth) “CEA” - Evidence Act 1977 (Qld “QEA” - Criminal Law (Sexual Offences) Act 1978 (Qld)

Evidentiary Laws and Rules: Sources and Jurisdiction Relationship between the Jurisdiction of a particular Australian court and the Rules of Evidence pursuant to which it will function = ESSENTIAL  Lawyers need to follow the correct procedural rules in order to o Tender their evidence to the court (to bring it to the courts attention); and o Understand the rules that the court is going to apply in deciding whether to allow that evidence to be considered in determining the matter over which it's adjudicating When we make submissions in court on behalf of our clients we will usually want to support those submissions by reference to one or more of the three types of evidence: 1. Oral Testimony: The words uttered by witnesses 2. Documents: Reference to documents and what's contained in them 3. Physical Objects: Reference to physical objects such as an alleged murder weapon or a piece of faulty equipment

In order for the court to agree to consider those words or documents or objects they first have to be entered into evidence (There are a lot of rules about how this is done) Which rules the court applies will depend on the jurisdiction of the particular court that you were appearing in. The three major sets of rules which regulate the reception of evidence in Australian courts are: 1. The Evidence Act 1995 (Cth); 2. the Evidence Act 1977(Qld); and 3. the Common law Also need to keep an eye on delegated legislation esp those that create offences and those on practice directions

Key legislative provisions that determine which statute laws are going to apply in a particular court for particular matter Note: Most federal criminal matters and some civil matters are dealt with in state and territory courts For example: an accused person in Queensland charged with an offence of drug importation under the Commonwealth crimes act will go to trial and the Supreme Court in Brisbane because state courts are far more numerous and available in far more locations than federal courts + federal courts don't have facilities for jury -> PRACTICALITY

In relation to jurisdiction, if a matter is being dealt with in any federal court (i.e the federal court of Australia, the Family Court of Australia, The High Court of Australia) then the Commonwealth Evidence Act will be the governing statute with relation to issues of evidence Commonwealth Evidence Act - Section 4

The act applies and this is what we want to see in Section 4(1) “This Act applies to all proceedings in a federal court”  So, the Commonwealth Evidence Act applies in all Commonwealth courts

Judiciary Act 1903 Section 79 Most Commonwealth matters are going to be dealt with in a state court even though there exercising Commonwealth jurisdiction If we have a state court exercising federal jurisdiction then the laws of procedure and evidence in that state or territory are binding  So, a Queensland court hearing a Commonwealth matter the Queensland Evidence Act will apply

Judiciary Act 1903 Section 80 “insufficient to carry them into effect” 

If

you've got a Commonwealth statute that doesn't apply to a particular matter or is silent in relation to it

So, if you have got someone that is convicted of a Commonwealth offence and an appropriate punishment isn’t provided for in Commonwealth legislation then Section 80 tells us that both the Common Law in Australia (Cases decided by the High Court of Australia or any Court in it’s appellate hierarchy i.e. Supreme Court of Queensland) then the statute law in force in the state will govern all courts exercising federal jurisdiction in civil and criminal matters. So, if we are in a federal court the Commonwealth Evidence Act will apply but section 80 of the Judiciary Act tells us that if there’s a question of evidence that cannot be resolved by reference to the Commonwealth evidence Act then the court must go to BOTH the Queensland Evidence Act (if it’s being heard in Queensland Court ) and the Common Law for assistance.  Rare for a matter that is not being dealt with by Commonwealth Act by the QEA o Commonwealth Evidence Act is drafted in much more detail it's much more likely to cover an issue o But as is always the case, the Commonwealth Evidence Act as a statute only sets out the basic rules and most of the detail of how we interpret and apply those rules come from the common law So, if you're appearing in a federal court: 1. Start with the Commonwealth Evidence Act 2. If there are any there any gaps in the law/ If it won't help you resolve a particular issue, then you go to the Evidence statute for the particular state (in our case that's Queensland Evidence Act) and the common Law *Remember* The Commonwealth Evidence Act applies in all federal courts, if you're just working in a Queensland court (i.e the Supreme Court District Court or magistrate's court) and the matter arises under Queensland law, then the Queensland Evidence Act supplemented by the common law where needed is going to apply and there's no need to consult The Commonwealth Evidence Act for a Queensland court hearing in a Queensland matter- Unless one of the matters contained in the table in Section 5 of the Commonwealth Evidence Act arises.

Commonwealth Evidence Act - Section 5

This section tells us that if one of the matters outlined in Section 5 arises, then the sections of the Act provided in the table apply in every Australian court. What's an Australian court The Commonwealth Evidence Act Dictionary defines an Australian Court to mean, among other things a court of a State or Territory So the Supreme Court, District Court, Mags Court and any Queensland court for the purposes of the Commonwealth Evidence Act is a Queensland court

If a matter let's dealt with in the table in Section 5 of the Commonwealth Evidence Act arises then the Commonwealth Evidence Act relevant provision will apply.

 They not particularly common, mostly routine administrative and documentary

issues

Nature and Functions of Evidence Law of evidence is a set of prescriptive and mainly exclusionary rules which limit what pieces of evidence of court is going to allow to be considered in coming to a decision.

The Nature of Evidence Evidence in the Colloquial Sense v Evidence in the legal sense Generally, we want as much information is we can possibly get in order to come to conclusion. We look for evidence of what happened and what evidence we decide to consider and how we obtain it is completely up to us as individuals and that's what we mean by evidence in the colloquial sense but when a court’s tasked with making a legally binding determination of fact, the rules of evidence dictate what information the court may and may not consider (legal sense).

 A court can't just allow a jury to hear any information at all the rules of evidence operate to determine what is not admissible evidence and that's why we say there are exclusionary rules in the main Imagine: We're sitting at home one night watching TV we hear a terrible screech of tyres and a loud bang outside we go out and find a car on the footpath broken glass everywhere person spread out seriously injured in front of the car. Out of curiosity we naturally want to know what happened so we take a look at the scene. We ask our neighbours who've also come out what they saw, perhaps we see the driver step out of the vehicle and decide that he looks drunk, maybe someone says they know the driver and that he's notorious for being a dangerous driver. All of that information helps us to form a picture of what happened but if the drivers eventually indicted for dangerous operation of a motor vehicle causing GBH, the trial court judge won't automatically allow the jury to hear all of that information. Courts generally don't admit: - rumour or second hand information that people have heard from someone else; or - evidence of a persons prior criminal history even where they have convictions for similar offences; or - opinions of anyone (unless they are the opinions of a relevant expert in some situations) However, in some legal and quasi-legal tribunals, the formal rules of evidence DO NOT apply and the tribunal of fact in those places is free to make use of whatever evidence and whatever information it thinks will help it get to the truth of what happened. These sorts of forums are allowed to do this because they generally aren't convened to make rulings on legal disputes between people or between the Crown and an accused person. So there's a sense in which nobody is on trial and therefore in need of a fair trial so the more formal rules of evidence that prescribe those pieces of evidence need to be rigorously tested are of less importance. For example, according to section 37(1) of the Coroners Act 2003 (Queensland): “The Coroners Court is not bound by the rules of evidence but may inform itself in any way it considers appropriate.”

So, a Coronial inquest into what caused the death of a person hit by a car might consider for example things like:

None of these pieces of evidence would be admissible at common law in a trial court but it would be perfectly okay for a coroner to take them into consideration in determining the cause of death The Theory of the Case

A good investigation Or legal preparation involves collecting everything you believe may be relevant to your theory of the case which for the Crown is sometimes referred to as the Essential Prosecution Narrative (EPN). o Who, where when, why how and with whom The theory of the case just refers to the narrative, story or explanation which you construct in which you want to convince the jury is the narrative which is the best explanation for all the facts and which is the narrative obviously most beneficial for your client.

The defence of course doesn't require any overarching narrative at all its job isn't to prove anything and its job succeeds if it can simply convince the jury that the Crown has been Unable to prove beyond reasonable doubt any element of the offence with which the accused is charged but generally defence counsel should also have an alternative exculpatory narrative ready for the jury if it's needed as the trial progresses.

In deciding what these facts are the jury as we know is only permitted to have recourse to the evidence which the judge has allowed in. Strong theory of the case will: 1. Be based on facts and inferences which can be fairly drawn from that evidence; 2. Be consistent with any incontestable fact meaning effect; and o beyond doubt or one to which judicial notice has been attached 3. Anticipate your opponents theory

The initial body of information that's obtained during investigation and trial preparation will then be thinned out by the rules of evidence and also by ethical rules and forensic decisions Forensic and Ethical Considerations Forensic decisions The decisions which you as counsel will make as to: - Whether or not to lead certain evidence which is likely to be admissible - Whether to push certain lines and cross examination of witness - Whether to make objections to your opponents evidence

There may be circumstances for example when despite its admissibility it may not be strategically wise to put certain evidence before the court in that it doesn't support your theory of the case. For example: that defence counsel decides to advise their client the accused against taking the stand give evidence themselves because council considers the client as a witness for their own defence may lack credibility in the eyes of the jury and exposing the client to cross examination by the Crown My highlight that lacked credibility Ethical constraints Ethical rules which can constrain your forensic decisions available to Crown. **CASE** Brownwne v Dunn The prosecution cannot simply select witnesses to give evidence based on whether that evidence supports the Crown case. They have a duty to call all material witnesses There is also a strong ethical duty which counsel must observe as officers of the court not to mislead or to knowingly allow the court to be misled. For example if a client tells us one version of the facts in preparation for trial but then on the stand offers something different while you're getting their examination in chief you'd need to workout with the client probably during and in an adjournment what their instructions actually are before continuing to examine them. The Adversarial System In order to properly understand how our laws of evidence work in the real world rather than just in the books we need to have a clear understanding of the adversarial system of litigation. This is because the evidence rules exist to control the functions and the activities and the jobs of the judges and lawyers who appear in these trials.

The modern adversarial system that we're used to traces its roots back to a group of significant reforms to criminal and trial procedure in England in the 18th century. They were the culmination of a centuries long tradition in which legal processes were almost inseparable from rubble from political processes dictated by succession of autocratic systems of government. - Monarchs and autocratic parliaments in particular dominated what happened in courts. - Courts were generally there to manifest the power and policy of these autocrats rather than to primarily resolve disputes between private citizens. The gradual displacement of the legislative power of the monitoring and the devolution of the power of the state to truly representative bodies like modern parliaments gave rise to a more meaningful conception of social and political rights and of personal autonomy where citizens would then have access to an objective forum and try and have their disputes resolved rather than relying on the magnanimity or the fiats of monarchs order quarter kratz or generally people with a lot of power. The adversarial system sometimes is referred to as the common law system and that's reflective of the fact that in jurisdictions with a similar way of adjudicating to our own, the doctrine of stare a decisis supplies meaning that the decisions of a court are binding on all those below it in the appellate hierarchy. To find out what the law is about a particular topic we need to research both legislation and the reported decisions of courts. This is in distinction to the civil law jurisdictions which don't primarily have adversarial systems litigation and in which the law is heavily codified and the doctrine of stare a

decisis doesn't apply. So courts in civil law jurisdictions decide their cases by meticulously plying the provisions of the voluminous civil legislative codes on a case by case basis and they only make that make declarations that they consider themselves bound by an existing decision of a higher or a previous court on fairly rare occasions. In those civil law jurisdictions it's not unusual to see judges called witnesses to gather or require evidence off their own bat and they tell the lawyers what to do far more than is the case in our common law courts, Also see the great proliferation in various types of Islamic legal systems which to varying degrees apply Sharia law and generally informed by for Islamic jurisprudence (deeper full understanding) If you're interested in researching the origins of both common law and the civil law systems you need to be aware that in addition to the Roman influence on western legal traditions, Islamic law in Islamic thought has also heavily influenced both systems. Especially during the 8th to the 14th centuries allow that fact is often either missing or heavily downplayed in traditional texts of histories of jurisprudence

So, how is this history of the common law world reflected in what happens in an adversarial trial court? At trial court consists of two distinct tribunals:

Tribunal of law Decides how the legal procedural and evidentiary rules are applied. This will be the judicial officer. Tribunal of Fact Determines which party's version of the facts prevails. This will either be a jury or judge sitting alone or a magistrate in a summary trial. The tribunal fact has the job of deciding whether the facts to the extent there established by the admissible evidence supports either the prosecution or the defence.

The Tribunal of Law: Judge

The judge in our courts has become the arbiter of procedure of the conduct of the lawyers and of the application of the law of evidence. - Not an intellectually passive role but to someone familiar with the more interventionist style of judging which is prevalent in the inquisitorial civil system the judge here would seem somewhat disinterested in the proceedings because it's not the job of the adversarial judge to investigate or explain the facts or to get to the bottom of the issues.

The adversarial judge will typically be a former trial lawyer with years of experience in trial work and in Substantive law and the rules of evidence. Once the jury has been impanelled and the accused has been arraigned in a criminal trial, the judge will explain the structure of the trial to the jury explain what beyond reasonable doubt means and then take up and then take a relatively passive role while a Crown and defence call their witnesses, tender evidence and address the jury.  So explaining the process of the trial and what's happening to the jury is almost the extent of the interventionist role of the judge o This means that the substance of the trial be it civil or criminal is largely controlled in terms of what issues the court is asked to adjudicate upon and what evidence is produced to support those issues happens by the action of the parties themselves usually by agency of their legal representatives right. o When council wants to argue points of law or such as whether a particular piece of evidence ought to be admissible, counsels submissions about that point of law will be heard and determined by the judicial officer. Usually the judge as the tribunal of law in the absence of the jury doesn’t need the jury there because it's not a question of fact, it will only be relevant to the jury if that evidence is then subsequently admitted.

The proceeding during which the juries ask to briefly adjourn and absent itself from the courtroom and where legal argument is then heard by the judge from council is called the voire dire.

For example, let's say defence counsel in a criminal trial wants to object that a particular Crown witness has been improperly coached about what to say in the witness box rather than giving their own account. When this happens it's usually barrister objecting to the evidence of a child who just seems to be repeating and parroting something that they have been taught to memorise. Counsel might argue that the child in that case wasn't competent to give reliable evidence. **CASE** R v Drover (1990)

Section 9A of the QLD Evidence Act tells us that “if, in a particular case, an issue is raised, by a party to the proceeding or the court about the competency of a person called as a witness in the proceeding to give evidence” then this section will apply “[That person] is competent to give evidence in the proceeding if, in the court's opinion, the person is able to give an intelligible account of events which he or she has observed or experienced.” o an account not a recitation  Therefore, as seen in Rover, the witness appeared to give evidence by means of recitation rather than recollection so it wouldn't be intelligible evidence. **CASE** R v Harding [1989] A voire dire for the purposes of Section 9A must be held in the absence of the jury.  You don't want the jury to hear what it is that the child might say or have their credibility eroded unless they're actually going to be appearing. Barristers (particularly defence counsel) are some of the most important people in trial quarter of co...