LAWS13010 Evidence and Proof

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LAWS13010 Evidence and Proof

• Topic 3 Methods of Proof

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Learning Objectives

• At the end of this topic, you should be able to
• Distinguish testimony, documentary, and real
  evidence
• Explain the concepts of competence and
  compellability
• Distinguish observation, hearsay and opinion
• Describe different forms of documentary evidence
• Explain the need for documents to be
  authenticated
• Identify types of Real evidence and
• Describe the meaning and purpose of judicial
  notice, formal admissions, presumptions and
  estoppels

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Proof without new evidence

• (Drawn from chapter 2 of Field)
• The ways to have the court make a finding of fact
  without having to lead evidence of that fact are
• When the court takes judicial notice of a fact
• When a rebuttable or irrebuttable presumption of
  law operates in your favour
• In some cases, where the question of fact was
  determined in earlier proceedings
• Cause of action estoppel (criminal and civil
  cases)
• Issue estoppel (civil only)
• Where a party has made admissions

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Judicial Notice
First category Some facts are so notorious
that they are indisputable and need not be
proven. The test is whether every ordinary
person may reasonably be presumed to be aware of
it. Holland v Jones
Examples Cats are kept as domestic
pets. Creches are used by mothers with
children. Brolgas are common in the Atherton
Tablelands.
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Judicial Notice
Second category Where a court refreshes its
memory on a topic which is capable of immediate
accurate demonstration by resort to readily
accessible sources of indisputable
accuracy. per Beaumont J in Munro v Tooheys
(1991) 29 FCR 74 at 91
Reference sources like Encyclopaedia Britannica,
the Oxford Dictionary, political and medical
journals have been referred to under this rule.
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Formal Admissions
To save time, expense and futile effort, parties
in both civil and criminal matters can agree that
certain facts are not in contention. At this
point, these facts are no longer facts in issue
and therefore there is no need for them to be
supported by evidence. In civil matters, the
process of entering pleadings allows the parties
to agree on a range of facts and narrow the case
to the points of difference. In criminal
matters, the accused may choose to admit certain
facts, which will then not require proof. For
instance, in a sexual assault case, an accused
person might admit the act of intercourse, but
dispute the question of consent. Intercourse
will therefore not need to be proven by the
prosecution.
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Estoppels

• An estoppel will stop a party from bringing their
  case (in whole or in part) when it applies.
• Its a procedural device to protect the court
  from being clogged with re-hearings of matters
  that have already been litigated to their
  conclusion, but where a party might otherwise be
  tempted to have another go at getting the result
  they want.
• Estoppel only applies
• Between the same parties
• Litigating the same matter/issue
• In the same legal capacities as they did in a
  previous case
• And the matter has been litigated all the way to
  final judgment.

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Estoppels

• 2 types
• Cause of action estoppel (res judicata, double
  jeopardy) applies to the case as a whole,
  operates in civil and criminal cases
• Issue estoppel applies only to individual
  factual issues, only in civil cases

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Proving Your Point
1. What must I prove, and to what standard? 2.
What information is available to prove that
fact? 3. Is the information direct or
indirect? 4. Is any of the information clearly
inadmissible? 5. Which potential evidence is
most reliable? 6. Which reliable evidence is
most probative? 7. In what form is the evidence?
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Testimony
Testimony is evidence given viva voce about
things detected with the witness' own five senses
A witness can learn and know facts by and through
the exercise of his perceptive faculties, -- his
five senses, -- and such facts he may
state People v Ogden (1890) 25 NE 755
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Competence
A person is competent to give evidence if they
are able to understand the nature of their oath,
and their duty to tell the truth. It is for the
judge to determine, as a question of fact,
whether they meet this standard.
In this case the lunatic seems to have been
perfectly acquainted with the nature and sanction
of an oath Alderson B, in R v Hill
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Competence Statutory Definitions
A person is competent to give evidence if the
person is able to give an intelligible account of
events which he or she has observed or
experienced. Evidence Act 1977 (Qld) s.9A(2) A
person is competent to give sworn evidence if
they understand that the giving of evidence is a
serious matter and that they have an obligation
to tell the truth that is over and above the
ordinary duty to tell the truth. Evidence Act
1977 (Qld) s.9B(2)
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Compellability
General Principle Anyone competent is also
compellable. Ex Parte Fernandez (1861) 142 ER
349 Husbands and Wives are now compellable
against one another. Evidence Act 1997 (Qld)
s.7 The accused is not competent or compellable
to give evidence for the prosecution in a
criminal matter. Evidence Act 1997 (Qld) s.8
Every person in the kingdom except the sovereign
may be called upon and is bound to give evidence
to the best of his knowledge upon any question of
fact material and relevant to an issue tried in
any of the Queens's Courts Willes J, Ex Parte
Fernandez
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Privilege

• Even though a witness may be compelled to appear,
  there are a range of privileges which may
  entitled them to refuse to answer specific
  questions. For instance
• Privilege against self-incrimination
• Evidence Act 1977 (Qld), s.10
• Client Professional Privilege
• Legal Profession Act 2007 (Qld), s.491(1)
• Parliamentary Privilege
• Parliament of Queensland Act 2001 (Qld) s.8
• Parliamentary Privileges Act 1987 (Cth) s.16
• Public Interest Privilege

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Observation Evidence
Testimony of those things which a witness
actually perceived, themselves, with their own
five senses. Observation evidence is limited to
a direct description of those observations,
without drawing any inferences from them, and
without adding any additional context. Observatio
ns evidence can be difficult to distinguish from
some opinion evidence. Consider I heard a
gunshot outside. (Opinion) I heard a loud bang
outside. (Observation)
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Opinion Evidence
Opinion evidence does not simply relate the facts
observed by the witness rather it adds some
level of interpretation. Some of these,
described by Field as University of Life
observations, are admissible because they are the
only sensible way to enable testimony. Exam
ple In R v Whitby (1957) 74 WN NSW 441 a police
officer was permitted to testify that a driver
appeared to be, and smelt, intoxicated, even
though no breath test was ever administered.
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Hearsay Evidence
Hearsay is testimony of something a witness has
heard from someone else. Hearsay is usually not
admissible why not just ask the third party
directly? There are some exceptions, which we
will cover in later weeks.
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Documentary Evidence

• For evidential purposes, a document reflects a
  wide range of media in which words, images or
  sounds can be stored and later retrieved. The
  statutory definition includes
• Books, plans, maps, graphs or drawings
• Photographs
• Labels
• Discs, tapes or soundtracks recording data
• Films, negatives and tapes and
• Any other record of information whatever.
• Evidence Act 1977 (Qld), definition of Document

Example Aust National Airlines Commission v Cth
(1975) 132 CLR 582, in which a cockpit voice
recording was held to be a document
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Real Evidence - Exhibits
Physical objects put before the court for the
court to observe first hand. Exhibits must be
authenticated by testimony before they can be
accepted as evidence. While they are
interesting, are they actually compelling? Do
they tell the court anything the court cannot
learn from oral evidence?
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Real Evidence - Incidental
The demeanour of a witness will, in all
likelihood, affect the credibility which is given
to their testimony. However, the demeanour of a
witnessmay in some circumstances becomeevidence
in itself. This is real evidence because it is
directly observed by the court. Example GIO v
Bailey (1992) 27 NSWLR 304in which a judge
observed the physical discomfortexperienced by a
witness who had been injuredin a motor vehicle
accident
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Real Evidence - Demonstrations
Demonstrations may be conducted by witnesses in
the witness box, for instance to physically show
an act they claim to have performed however more
complicated re-enactments should be viewed with
great caution.
A real life US courtroom re-enactment of how an
accused person is alleged to have stabbed her
husband 193 times. The re-enactment was intended
to show the length of time the offence would have
taken. Was a re-enactment necessary? Could the
same result have been achieved by testimony?
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Views
A view occurs when the judge and other
participants visit a place relevant to the
case. Under the common law, a view may be used
to understand evidence, but it cannot be used to
create new evidence it cannot, therefore, become
the location for recreation or experimentation. Sc
ott v Numurkah Corporation The Uniform Evidence
Acts, however, allow views to be taken in the
same manner as courtroom demonstrations. Evidence
Act 1995 (Cth) ss.53-54
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Review

• In this topic, you have learned
• the basic principles of assessing the evidence
  required to prove your case
• who is competent to give oral evidence, and who
  can be compelled to do so
• the difference between observation, opinion and
  hearsay
• The wide description of documentary evidence, and
  the complexity of its use
• The three types of real evidence exhibits,
  incidental observations, and views and
• Facts which require no evidence judicial notice,
  formal admissions, presumptions, estoppels