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Week 9: Documentary and Real Evidence - Coggle Diagram
Week 9: Documentary and Real Evidence
Document
Any medium upon which information may be stored and later retrieved by someone with the appropriate equipment
Usually important for the information which they may convey to the courts
Range of documents not closed. As new technologies develop and new means of storage and retrieval are developed, these means will fall within the definition of document
Two relevant statutory definitions
Evidence Act 1977 Sch 3
Acts Interpretation Act 1954 s 36
Documents are Hearsay
Hearsay is evidence of a representation made outside the courtroom itself
Data contained within a document is, by its nature, a representation made outside the court
Why cannot the maker of the document come to court to give evidence?
Common Law Rules
Documents had to fall under one of the exception rules
The original document was generally required to be presented to the court.
Even once admitted, the document might not be used for all purposes - its purposes were limited to the extent of the hearsay exception
The document must be authenticated, either by being 'adopted' by a person, or by being identifiably traceable to a machine which created the document
Statutory Rules - CIVIL
Evidence Act 1977 s 92(1)
Permits the admission into evidence in a civil proceeding two types of documentary hearsay:
92(1)(a) statements that contain first hand hearsay
92(1)(b) statements that were recorded or compiled 'in the course of an undertaking', based on the information supplied by a person who had personal knowledge of what was being recorded
Not mutuall exclusive provisions
Must be evidence that would be admissible were it to be given in oral form (eg, not an inadmissible opinion)
Information must be the personal knowledge of the maker of the statement or supplier of the information
Undertaking is a very wide concept
Eg,
Kenny v Nominal Defendant
[2007] QCA 185
Section 92(1) requires the maker of a statement in the document be called as a witness
Section 92(2) provides useful exceptions to the need to call the witness in order to have the document that falls within section 92(1) category admitted into evidence
s 92(2) exceptions
Witness is dead or physically or mentally unfit
Witness is out of state and it is not reasonably practicable to secure their attendance
Witness cannot with reasonable diligence be found/ID
Consent, ie, no party wants to cross examine the witness
Statutory Rules - CRIMINAL
section 93(1) is narrower than s 92
applies only to criminal matters
exists to permit the admission of appropriate trade or business documents only
applies to 'trade or business' document, narrower than the documents of an 'undertaking'
must be otherwise admissible information
standard of proof on a voir dire of this kind is on the balance of probabilities
s 93(1)(b) exceptions:
Witness is dead, or physically or mentally unfit
Witness is out of the state and it is not reasonably practicable to secure the attendance
Witness cannot with reasonable diligence be found/ID
Witness unlikely to have personal recollection
Section 93A
Four basic conditions exist before a statement is admissible under 93A
The maker of the statement was, at the time of making it, a child, or a person with an 'impairment of the mind'
The maker of the statement had personal knowledge of its contents
The child or intellectually impaired person is available to give evidence in the proceeding
The statement in question is 'in a document'
This is how vide-recorded evidence these witnesses is tendered, works with section 21A
s 93A(3) entitles the person against whom the statement is admitted (usually the defendant) to insist that the Crown call, the witness for cross-examination as well as the person who recorded it
The s 93A statement constitutes their evidence-in-chief
The witness may still get 21A facilities for cross-examination
Section 93A(2A): related statement provisions
Practical necessity: the questions asked by an interviewer in recorded evidence are admissible because the witness' evidence would be meaningless without it
A s 93A statement is not an exhibit at trial, but a record of the testimony it contains:
Gately v The Queen
(2007) 232 CLR 208
Section 93B
Applies for 'dying declaration situations.
If A said something to B, but A is now dead or mentally or physically incapable of giving evidence, hearsay evidence of a representation made to B about an asserted fact about which A had personal knowledge is admissible
Only in cases of homicide, suicide, concealment of birth, offences endangering life and health, assaults, rape, sexual assaults
R v Lester
(2007) 176 A Crim R 152: a statement made by a person now deceased as to their state of mind at the time they made the statement might, if relevant, be admitted as 'an asserted fact'
Section 93C
Allows either party to request the trial judge warn the jury of the potential unreliability of hearsay evidence, where it is admitted under s 93B. Judge must comply unless there is good reason not to do so
Section 95
Deals with admission into evidence, as proof of the facts contained therein, of what are described as statements 'contained in a document produced by a computer
It is a form of exception to the hearsay rule
Allows evidence to be admitted provided that someone can vouch for the reliability of the computer and the system under which it was employed
Applies in civil and criminal proceedings
Compare admissibility of 'books of account' under s 84
Most computer documents are admissible on the same terms as any other documents
A certificate is required in order to authenticate the document
Evidence Act 1977
(Qld) s 95
Carolan v Cohen
(2011) QDC 103
However, two types of computer evidence are not regarded as hearsay:
Where the computer is used as a calculating device, provided the calculation method can be verified
Where the computer records data not generated by human beings
DNA
DNA evidence in criminal proceedings operates under different rules from any other form of documentary evidence.
The CEO of the Health Dept may appoint analysts to be DNA Analysts under the Evidence Act s 133A
A certificate from such an analyst is evidence of its contents
However, if a party seeks to rely on the certificate, the analyst must be available to give evidence
Evidence Act 1977
(Qld) s 95A
Section 94
where a statement is admitted under ss 92, 93 or 93A and the person who supplied the information is not called as a witness, any evidence that would have been admissible for either supporting or destroying their credibility as a witness will be admissible, along with any previous inconsistent statement or previous convictions of the witness effecting their credibility
Section 98
Allows the court to reject in its discretion any statement or representation if for any reason it appears to be inexpedient in the interests of justice for it to be admitted
1 more item...
Business Records
Most business records will be treated the same as any other forms of documentary evidence; ie they will be admitted or excluded under the Evidence Act
Different rules exist for 'Books of Account' ie accounting records. Sections 83 and 83 of the Evidence Act deal with these. Applies in both crim and civil
Books of account are regarded as evidence automatically, without any need to call the maker of the documents to give evidence.
Evidence Act 1977
(Qld) Pt 5, Div 6
Photographs
Photographs, whether taken by a machine or by a person, can -be admitted into evidence on the same terms as any other document
Authentication by the photographer (where one exists) will normally be necessary (if veracity contested)
Case law exists to suggest that 'negatives' should not have been 'retouched'
Given the Photoshop era, are photographs less reliable?
Photographs and shock value
Child abuse material
Graphic injuries
Audio recordings
The playing of an audio recording in court is evidence of the content of the recordings
If the audio is available, transcript is not sufficient
However, the Uniform Evidence law jurisdictions, a transcript may be used:
Evidence Act 1995
(Cth) s 48(1)(c)
Evidence may not be admissible if it was collected illegally or if its use would be unfair to the defendant (in a crim matter)
Real Evidence
It is seen or experienced by the court directly, as opposed to documents or testimony which tell the court about things that happened outside the court
Real evidence does not speak for itself. Real evidence must be authenticated by testimony
If that is the case, of what use is real evidence?
Can real evidence offer perspective and context which cannot be offered by testimony?
Or is its true value that it may be more exciting, particularly to jurors?
The Witness in the Courtroom
Judges and juries will inevitably obtain three types of information from witnesses
Information directly from the witness
Information as to credibiilty
Was the witness evasive?
Was the witness lying?
Was the witness unreasonably uncomfortable?
Information arising from human experience
Did the witness have strong command of the English language?
Did the witness have a physical disability?
Is the witness of normal intelligence?
When is a document real evidence?
Whether the item itself is relevant
in itself (real evidence)
, or whether the item is relevant
because of the information that can be retrieved from it (document)
Courtroom demonstrations are almost always inherently unreliable
Views
A 'view' occurs when the court to travel outside the courtroom, in order to see something which cannot be brought into court
View must be handled with great care:
...
a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of evidence
Under Uniform Evidence laws, a view may be used as evidence in the same manner as an exhibit.
Evidence Act 1995
(Cth) ss 53-54