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Evidence and ProofCourse notes and reading guide:Documents and Other EvidenceText bookChapter 3 KOPChapter 4 KOPLegislationEvidence Act 2008 (Vic) 47-54, 57, 70, 71, Part 4 (Facilitation of proof), Part 4.Dictionary: Unavailability of documents and thingsCrimes Act 1958 (Vic) ss 464K- 469AACasesBute...

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Evidence and Proof Course notes and reading guide: Documents and Other Evidence

Text book Chapter 3 KOP Chapter 4 KOP

Legislation Evidence Act 2008 (Vic) 47-54, 57, 70, 71, Part 4.3 (Facilitation of proof), Part 4.6 Dictionary: Unavailability of documents and things Crimes Act 1958 (Vic) ss 464K- 469AA

Cases Butera v DPP (1987) 164 CLR 180; 62 ALJR 7 [3.50]* R v Milat unrep NSWSC 12 April 1996 [4.40]* Evans v The Queen (2007) 235 CLR 521 [4.50]* R v Bilal Skaf (2004) NSWCCA 37 [4.60] Kozul v The Queen (1981) 55 ALJR 377 [4.80]*

Cases referred to R v Cassar ; R v Sleiman [1999] NSWSC 436 R v Skaf (2004) 60 NSWLR 86 Scott v Numurkah Corporation (1954) 91 CLR 300 R v Alexander [1979] VR 615 Hindson v Monohan [1970] VR 84 Walker v Walker (1937) 57 CLR 630 R v Harrison [1966] VR 72 Owner v Bee Hive Spinning Co Ltd (1914) KB 105 Doe d Mudd v Suckermore (1836) 111ER 1331 Smith v The Queen (1970) 44 ALJR 463 R v Carr [1972] 1 NSWLR 608 NAB v Rusu (1999) 47 NSWLR 309 R v Bilal Skaf (2004) NSWCCA 37

Other reading Australian Law Reform Commission, Evidence, Volume 1, Interim Report 26 (1985) Australian Law Reform Commission, Evidence, Report No 38 (1987) VLRC Final Report (2005) Ch 4 (9-122; Ch 5 (123-164); Ch 6 (165-186)

Judicial College of Victoria & Victorian Law Reform Commission, Introduction to the Uniform Evidence Act in Victoria: Significant Changes (2009) Victorian Law Reform Commission, Implementing the Uniform Evidence Act Report (2006) V Bell, ‘Documentary Evidence under the Evidence Act 1995’ (2001) 5(1) Judicial Review 1 ES Magner, ‘The Best Evidence - Oral Testimony or Documentary Proof?’ (1995) 18(1) UNSWLJ 67L Crowley-Smith, ‘The Evidence Act 1995 (Cth): Should Computer Data be Presumed Accurate?’ (1996) 22 Monash ULR 166

1. Documentary Evidence There are two rules to be satisfied at common law before a document can be received into evidence either as an exhibit or it contents disclosed to the jury in any way 1.

The Best Evidence Rule requires the original document to be produced unless its non production is excused under an exception to the rule.

2.

Authentication: here where the relevance of a document is contingent on showing that it was executed or adopted or otherwise connected with a particular person, that connection must be shown before the document can be admitted.

The UEA made significant changes to common law principle including the adoption of a more flexible approach to documents. These are reflected in the Evidence Act 2008 (Vic).

Legislation Evidence Act 2008 (Vic) 47-54, 57, 70, 71, Part 4.3 (Facilitation of proof), Part 4.6 Dictionary : Unavailability of documents and things

Historically, the common law required production of the original document if a party wanted to rely on the contents of that document. Secondary evidence of the contents could be accepted under a host of exceptions to the rule including serving or making a notice to produce.1 A notice to produce is a written notice served on the other party or an oral call, during a trial requesting the production of certain documents. The notice does not compel production at common law but if the documents are not produced under the notice, secondary evidence of the document will be admissible. The fact that the notice has been served provides the foundation for the admitting secondary evidence of the document. The party who chose not to produce the document under the notice will not subsequently be permitted to tender the original. A subpoena duces tecum however, can be used to compel the production of documents, for example where the party does not have any, or sufficient, secondary evidence of the document. There are risks in counsel calling for a document when he or she is not aware of the Contents. Walker v Walker concerned proceedings for maintenance by a wife. During her evidence, the wife stated she had a letter containing information that that her husband received certain salary.

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The husband’s solicitor called for the letter, which was produced but then objected to the letter after reading it. The letter was admitted into evidence. The High Court held that if a person (the cross examiner)calls for a document in court and inspects it, he/she is then required to tender it as part of his /her case if required to do so by the other party even though the document would otherwise be inadmissible ( in this case, as hearsay evidence) . Note that the rule in Walker v Walker will not apply where the document called for and inspected was used to refresh memory. If counsel asks to inspect a document that is used to refresh a witness’s memory, he /she is entitled to inspect it and cross examine on the parts used to refresh without making it evidence in the proceedings.

Other exceptions to the common law rule requiring production of the original document include: ●

Serving or making a notice to produce

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Where the pleadings give fair notice that the document is material to the proceedings

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Where the original document is a notice served on the opponent

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Where the original document is in the hands of a person who cannot be compelled to produce it

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Where the original document has been lost or destroyed

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Where the document cannot be produced because of physical impossibility, public inconvenience and the danger of damage

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Where the opposing party orally admits the contents of the document

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Where the opposing party claims the document has been altered or destroyed ●

Cross examination of an opponent’s witness on a written prior inconsistent statement

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Statutory exceptions

1.1 Evidence Act 2008 (Vic) The UEA made significant changes to common law principles including the adoption of a more flexible approach to documents. The ALRC explained some of the issues that motivated change: At common law the original document must be produced unless it is shown that it cannot be produced. This applies regardless of the importance of a document in the case in question. Even a party in possession of the original document can object to the other party tendering secondary evidence of it where the tenderer did not make any formal request to have the original document made available. Evidence is also required to authenticate any copy document regardless of its importance, the obvious authenticity of the copy, and regardless of whether there is any genuine need to have authenticating evidence. The application of common law rules has given rise to difficulties in proving the contents of writings contained in modern photocopies and microfilm. An attempt was made in the 1960s to enact uniform legislation to deal with modern techniques of reproducing documents. This legislation regrettably is so complex that few organisations have attempted to comply with it. The legislative proposals in this report attempt to rationalise the common law and the legislation. Technicalities have been removed and special provisions are included to enable government and commercial records kept in microfilm and other copy forms to be proved by production of such copy records or prints made from them notwithstanding the availability of the original document. Provisions are also advanced to facilitate the authentication

copies and, in particular, copies of commercial and government records

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The key provisions are set out in Part 2.2 : ss 47-51 Evidence Act 2008 (Vic). However, there are other provisions relating to documents, including proving documents, in the UEA. Several other provisions relating to documents are discussed elsewhere in these materials. This is a brief overview of some of the key provisions: 1. The meaning of a document has expanded, of necessity, due to new technologies and now generally encompasses physical things on which data is recorded in such a way that the data is retrievable. One of the major changes introduced by the UEA is the expanded meaning given to document. ‘Document’: (Dictionary Cth) means any record of information, and includes: a)

anything on which there is writing; or

b)

anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or

c)

anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or

d)

a map, plan, drawing or photograph.

2. s 51 abolishes the original document rule, the effect of this is to abolish the law of secondary 3 evidence and proving copies. S 48 sets out an extensive list of how documents may be proved. 3. S 48 provides the ways in which documents may be proved, including 4

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Tendering the document

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Tendering a copy of the document that has been produced by a device that reproduces 5 the contents of documents ( e.g. photocopier)

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Evidence of admissions as to the contents of the document by a party (note s 48(3) )

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Tendering transcripts of words of recordings that are in code ( e.g. shorthand) or capable of being reproduced as sound

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Case Study Read Butera v DPP (1987) 164 CLR 180 7

The Federal Court in Eastman noted the role of transcripts of tape recordings as aides memoire when there is a dispute or doubt about whether the transcript accurately records the sounds on 8 the tape ‘notwithstanding the provisions of s 48 (1)(c)’ Sperling J later summarised how 9 transcripts may be used in R v Cassar and Sleiman (Judgement No 17)

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ALRC 26 xxxvii. NAB v Rusu [24] per Bryson J. 4 S 48(1). 5 S 48(1)(a). 6 S 48 (1)(b). 7 [1977] 158 ALR 107. 8 [1977] 158 ALR 107, 202. 9 [1999] NSWSC 436. 3

Before the Evidence Act 1995, the relevant law was stated in Butera v Director of Public Prosecutions (Vict) (1987) 164 CLR 180, in the joint judgment of Mason CJ, Brennan and Deane JJ. The central concept in Butera was that, when a tape is admitted into evidence, the evidence is the sound produced when the tape is played over in Court. Restrictions as to the admissibility of transcripts of what was recorded on the tape flowed from that concept. The Crown conceded, in the present case, that under Butera, the transcripts of the telephone intercept conversations would not have been admissible (because the recording of those conversations is distinct). S48(1) embodies no such restricting concept. It makes transcripts admissible according to its terms. A document that purports to be a transcript of words recorded on a tape is admissible to prove the conversations. Butera (supra), Menzies [1982] 1 NZLR 40 (quoted with approval in Butera) and the subsequent decision of the Full Court of the Federal Court in Eastman (1997) 158 ALR 107 are valuable authority for the use to which such a transcript may be put. The combined effect of s48(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 aidememoire. 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 s135 to s137.

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In addition to the above, S 48(1)(d) provides for retrieval of documents stored or computers and like devices, documents that form part of business records and official copies of public documents The ALRC explained the basis for s 48(1)(e) It is proposed that the distinction continue to be drawn between copy documents that form part of the records of a business (which should include commercial organisations, government departments and instrumentalities) and those that do not. It is in the business records area that the need for substantial reform of the law is most clearly demonstrated. In the case of business records there is also the further security of the need for accurate and reliable business records, because the business itself relies upon the records. It is proposed therefore that copy documents made and kept by businesses as part of their records should be admissible where the original is in existence without evidence that they are a copy, on proof of the fact that they formed part of its records. The proposal also permits evidence of the business record by tender of a copy. This is supported by arguments of convenience. .... As another example, assume that we wish to prove 10

[1999] NSWSC 436, [6] – [7].

the contents of a credit card transaction slip. The slip is held by the credit company. It has been microfilmed in the ordinary course of the credit company’s business and the microfilm is in constant use. When hard copy is wanted, a microfilm reader is used to produce a photocopy of the particular part of the microfilm reel which relates to the particular slip under consideration. The party wishing to prove the contents of the original slip by secondary evidence has three choices. He can - tender the microfilm itself; tender a hard copy if he can demonstrate that the hard copy was made in the ordinary course of the company’s business; or make a hard copy, 11 lead evidence authenticating it and tender the ‘hard copy’.

Similar considerations applied to public records. S 47 defines ‘document’ and ‘copy of a document’: (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.

Copies and oral evidence of the contents of documents will be admissible where the original is not available. The UEA Dictionary defines the unavailability of documents or things. Part 4.3 provides a number or presumptions intended to facilitate proof of documents and evidence produced by machines. For example, s 146 provides: (1) This section applies to a document or thing(a) that is produced wholly or partly by a device or process; and (b) that is tendered by a party who asserts that, in producing the document or thing, the device or process has produced a particular outcome. (2) If it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document or thing on the occasion in question, the device or process produced that outcome.

See also s 156, which is concerned with public documents and provides a rebuttable presumption that purported copies or, extracts from or summaries of public documents are what they purport to be. Other provisions in the Act that deal with documentary evidence: ●

The hearsay rule (part 3.2)

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The exceptions to the hearsay rule (Part 3.2)

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Documents produced by processes or devices (ss 146-147)

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Evidence of official records, public documents and Commonwealth documents (ss 155-159)

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Presumptions about gazettes and other official documents and documents published with parliamentary authority (ss 153-155)

The use of opinion evidence There are situations in which opinion evidence may be received to establish the execution of a document: ● 11

Where the witness has seen the person write and can identify the writing: in this case, the witness must

LC 26, 358-359 [ 654].

have had sufficient opportunity acquire knowledge of the person’s handwriting . ●

Where the witness has regularly seen the handwriting

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Handwriting experts

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By the jury itself

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Comparison of handwriting may be admissible under ss 78 (expert opinion) and 79 (lay opinion)

2. Real Evidence Real evidence is a general category of evidence that includes different forms of non-testimonial evidence. Real evidence may be tendered because it is material in the proceedings, either directly such as the knife or other weapon used in an assault, or as circumstantial evidence, or to aid the comprehension of the jury, such a map or chart. Views (visits to the site of the event) and demonstrations are also classified as real evidence although views, at common law, are not considered to be evidence. Real evidence includes evidence of a person’s demeanour, documentary evidence, models, tape recordings, photographs finger print impressions, blood tests and blood samples. Real evidence allows the jury to get a first hand impression. This topic considers some categories of real evidence. The following is a discussion of some of the categories of real evidence.

2.1 Tape Recordings The accuracy of the recording and the identity of the voices recorded should be verified either by a witness who participated in the recording or heard the material recorded. Documents are defined in the UEA Dictionary as including ‘anything from which sounds, images or writings can be reproduced\ with or without the aid of anything else’. s 48 provides for proof of documents, in particular s 48(1)(c). This means that audio and video recordings, photographs, drawings, maps and charts are all documents as they are things by which sounds, images or writings can be reproduced. Fingerprint and other forensic evidence will continue to be governed by the provisions in the Crimes Act 1958 (Vic). The ALRC explained the reasoning behind the provision: To remove uncertainty about the scope of the common law, provision is included to permit the tendering of secondary evidence of the contents of modem information storing media. In particular it deals with: ● audio tapes and words stored in codified form (this would include a word processor). It may be given by tendering a transcript; ● computers and like devices. It is not necessary to tender the original of the tape, etc., containing the computer instruction or data (this is likely to be meaningless to the court in any event) but the ‘printout’ may be tendered. The printout will have to be authenticated.

Tape recordings may however still be classed as real evidence as this allows the jury to gain an impression of what is recorded by listening or watching the material. 12

Duke v Duke (1975) 1 SASR 106.

2.2 Maps, Models, Charts Legislation Evidence Act 2008 (Vic) s 29(4)

These usually do not fall into the category of real evidence as...