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Week 3: Types and Classifications of Evidence - Coggle Diagram
Week 3: Types and Classifications of Evidence
Oral, Documentary or Real
Oral
The verbal testimony of a witness in court
Ideally about something they perceived with
their
senses
Traditionally, given in court, where cross-examination and demeanour may be assessed in order to determine how much weight to give evidence
Affidavits are increasingly used under Oath Acts and are an efficient way of submitting uncontested evidence. Commonly used in Family Court.
The witness speaks too evidence put forward, and is able to explain to the court what it means. This is incredibly valuable to one's case.
Documentary
Far more than a piece of paper
Sch 3 Evidence Act 1977 (Qld)
Maps
Graphs
Drawings
Labels
Photographs
Audio and Video Tapes
Any other record of information whatever
How does a document become evidence?
Be an item of real evidence
Important not for what it contains, but for where it was found
eg, a stolen bank card being used is evidence of the theft of the wallet
Be evidence of a legal transaction or disposal of property
Receipts for payment
Transfer of title documents
Evidence of
something else
that has occurred
eg, the transaction slip from the ATM, found in possession of the crook, is evidence of having used the stolen card
Contain evidence of relevant events
A business contract in which parties set out terms they agree to be legally bound by, used testimonially iun court.
A species f hearsay evidence as the document cannot speak for itself on its contents
Best evidence and stamp duty rules to be considered
Real
All the evidence that may be obtained from a 'thing'. The court can draw an inference merely be seeing the evidence. The evidence speaks for itself.
stolen property in the possession of a thief
A murder weapon
DNA samples from rape suspect on clothing of victim
Most real evidence is 'contextual' in nature and requires explanation of significance to the court by witnesses.
Photographs
Allows the court to see something significant
R v Ireland
(1970) 126 CLR 321 - photographs of the accused's hand allowed the court to see he had been in a fight
R v Ames
[1964-65] NSWR 1489 - photograpohs of wounds on corpse demonstrated blood spatter was consistent with murder, not suicide
In
R v Rawlinson
judge refused admission of house fire photo as pic contained image of burnt body in situ. Deemed 'graphic and correspondingly prejudicial'
View, demonstration and reconstruction
These must be carefully distinguished
View
An inspection of a scene or object without seeing it in operation or witnesses providing further explanation
R v Hawi (No 7)
[2011] NSWSC 1653 - judge satisfied a view of airport terminal
would
assist jury in understanding evidence in a trial for riot and murder.
Demonstration
A view incorporating an explanation by a witness of the incident in question or demonstration of the machine or object in operation
Reconstruction
An attempt to recreate the incident (in full or part) with witnesses and testimony
Discretion to limit jury examination of exhibits
Once an object becomes an 'exhibit' in a case, the jury may examine it and in theory it may be taken into the jury room when jury retires.
In practice most judges regard themselves as having discretion to refuse to let jury do so
R v Rae
[2006[] QCA 2007 - QCA found trial judges decision to allow jury to take images of the deceased which depicted 'ghastly injuries' inflicted by R was unexceptional and a quite proper exercise of discretion. Probative value.
R v Le
(2007) 173 A Crim R 450 - Conviction NOT overturned on appeal after jury had been allowed to take the accused's recorded interview and a transcript of said interview. Also
R v Smith
In QLD limited to criminal cases under s 130 EA. Unfair to the accused
Gately v The Queen
- pre recording evidence of young child victim being replayed for jury. Warnings to be given by trial judge
R v GAO
- laid general rule s 93A recordings NOT allowed in jury room without consent of bout counsels and with a trial judge warning
S 99 EA provides for documents and grants the trial judge discretion to disallow the jury to take any document into the jury room during deliberation if there is risk of giving 'undue weight' to any statement within
Direct or Circumstantial
Direct
Leads
directly
to the proof a fact in an issue
Circumstantial
Indirect
evidence of a fact in issue
R v Soloman
[2006] QCA 244 - statements of regret made by S to his victim, and another, following intercourse, were held to be circumstantial evidence that intercourse cocurred without V's consent.
Any item of evidence that is not direct evidence of a fact in issue, but which points toward the fact, must be regarded as circumstantial
Fingerprints
Handwriting
Dental impressions
DNA
Plomp v The Queen
(1963) 110 CLR 234
P charged with wife's murder by drowning off Gold Coast.
P's version was that she drowned in a strong under current and that he could not save her, though he tried
Wife was strong swimmer, surf was normal that day
P was seeing a single woman and had proposed to her and said he was widower (Wife still alive at this time)
P lied about the relationship and attempted to have her do so too
HCA upheld conviction finding jury perfectly entitled to take these factors into consideration when finding P guilty
Also
Baden Clay v The Queen
R v Dawson
Most circumstantial cases are 'rope' type. Where each piece of evidence is a strand of the rope, where each strand as to the strength of the case.
Gibbs CJ and Mason J in
Chamberlain v The Queen (No 2)
(1984) 153 CLR 521 -
Where the evidence is circumstantial the jury are required to draw inference from the circumstances of the case; in civil, a more probable inference in favour of what is alleged; in criminal, the circumstances must exclude any reasonable hypothesis consistent with innocence
Shepherd v The Queen
Dawson J at 579 - 'indispensable links in a chain of reasoning towards an inference of guilt'
Primary or Secondary