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Week 9 Documentary and Real Evidence - Coggle Diagram

- - - - Queensland the Evidence Act, have evolved a set of rules to allow documentary evidence to be tendered, where the use of documentary evidence would assist rather than hindering justice.
    - - The affidavit replaces the oral evidence that might otherwise be given by the witness..
        
        The affidavit is not documentary evidence
  - - - First, documents tend to be constructed far more carefully than oral evidence
        
        A witness preparing a document is not under the pressure of appearing in front of a courtroom.
        
        For the litigant, this provides the advantage of absolute certainty, before the case, about the evidence which each witness will present
        
        For the court, this provides a body of (hopefully) coherent, well-constructed evidence which can be used in determining the outcome.
      - Second, and perhaps more importantly, documentary evidence can defeat what we described in earlier weeks as the ‘limits of memory.’
        
        A document written at, or close to the time of an incident, will be written before the witness’ memory has the chance to degrade with time; and, of course, once the document is written, the document itself is unlikely to degrade.
    - - First, there is no way of knowing for sure whether a document was actually prepared by the witness who takes responsibility for it
      - Second, if the courts were to allow documentary evidence in preference to oral evidence, then we would quickly reach the point where nobody gave oral evidence.
      - Finally, and most importantly, when we discussed oral evidence, one of the key advantages of oral evidence was that it gave the opposing side an opportunity to cross-examine
        
        The ability to cross-examine, to test the evidence is fundamental for justice.
  - - - . For example
        
        if the document recorded a person’s confession to a crime, it might be admissible.
        
        If the document was res gestae, that is, ‘part of the action’, then it might be admissible
  - - - Evidence Act 1977 (Qld)
        Under section 92 of the Act (for civil cases), there are several steps to consider
        
        First, the content of the evidence must be admissible. In other words, if it would not be admissible for a witness to stand in the court and give the evidence orally, it will not be possible to introduce the evidence in documentary form.
        
        Second, documents are divided into two types
        
        The first type, is a document where the maker of the document had personal knowledge of the matters dealt with in the document
        
        The second type of document must meet three conditions
        
        • it must relate to ‘any undertaking’;
        
        • it must have been made in the course of that undertaking by a person with reasonable knowledge of the contents; and
        
        • the person who made the document must be called as a witness.
        
        Third, the statutory provisions nominate a list of circumstances in which documentary evidence of the first type – personal observations – can be admitted even if the witness is not available
        
        Section 92(2) provides really useful exceptions to the need to call the witness in order to have the document that falls within a section 92(1) category admitted into evidence
        
        Section 92(2) contains exceptions to the need to call the witness, while still allowing the document to be admissible: eg.
        
        Witness is dead, or physically or mentally unfit
        
        Witness is out of the state and it is not reasonably practicable to secure their attendance
        
        Witness cannot with reasonable diligence be found/ID’d
        
        Consent, ie, no party wants to cross examine the witness
    - - under s 93 of the Evidence Act (Qld).
        
        Second, the second type of evidence – relating to an undertaking – is tightened in criminal cases so that the evidence must relate to ‘trade or business.’
        
        narrower than the documents of an ‘undertaking
        
        Third, documentary evidence relating to trade or business may only be used when the witnesses is unavailable or cannot reasonably be expected to recall the circumstances. The time and expense and inconvenience of calling the witness are not factors.
        
        First, the first type of document identified above (personal observations) are not admissible in a criminal matter. The witness must show up and give evidence for themselves
        
        Standard of proof on a voir dire of this kind is on the balance of probabilities
        
        required if there is a need to confirm the genuous of the document
        
        Section 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 their attendance
        
        Witness cannot with reasonable diligence be found/ID’d
        
        Witness unlikely to have a personal recollection
        
        Section 93B applies for ‘dying declaration’ situations
        
        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’.
  - - - The first rule regarding photographs is that the photographer must be available to give evidence. That does not necessarily mean they will be called
        
        This rule does not exist in circumstances where there is no photographer -
        – for instance a red-light camera or a security camera
      - Second a photograph which has been modified in any way is unlikely to be admitted into evidence.
      - Finally, photographs can easily be misused. Graphic photographs of wounds; photographs of people in grief; emotionally challenging material such as child pornography; might all be shown to a jury to elicit an emotional reaction, which in turn might divert them from their duty in the court. Such material would certainly be more prejudicial than probative, and is unlikely to be admitted.
    - - An audio recording (typically, in the past, a tape recording) is a document
      - In other words, if the audio recording is available, a mere transcript of the audio recording is not sufficient.
      - The rule against the use of transcripts is not absolute.
        
        The case of Butera v DPP (1987) 164 CLR 180 is usually relied on as authority for the proposition that where an audio recording is available, a transcript is not admissible.
        
        The conversations were primarily in the Punjabi language, with occasional use of other languages, such as Malay and Thai. Clearly, it would have been meaningless to simply play the tape to the jury, who were only proficient in English. On this basis a transcript, while not the primary source of evidence, was of considerable use to the court, and the use of the transcript was not sufficient to support an appeal.
    - - Under s 95 of the Evidence Act 1977 (Qld), computers which are used regularly in the course of ‘activities carried on … whether for profit or not, by any person’ can have relevant documentary evidence authenticated by an appropriate person certifying that the information to be presented to the court is an accurate representation of the relevant data in the computer.
        
        For an example of this process in action, see Carolan v Cohen [2011] QDC 103, in which the records of a person’s driving infringements, produced from the computer systems of Queensland Police, were held to be sufficient evidence of that person’s driving history
    - - business documents are essentially divided into two types
        
        there are general business documents
        
        from a corporate plan to an internal email to an inter-office email to a request for tender. Any document, electronic or otherwise, might be a general business document. These documents do not attract a special set of rules. They must qualify as evidence in the normal manner, as described above.
        
        books of account
        
        are those books which constitute the formal financial records of the company. These are the records kept in accordance with good accounting procedure, and to enable the company to comply with its legal responsibilities
        
        The formal (and much less helpful) definition in section 83 of the Evidence Act is that the term ‘books of account includes any document used in the ordinary course of any undertaking to record the financial transactions of the undertaking or to record anything acquired or otherwise dealt with by, produced in, held for or on behalf of, or taken or lost from the undertaking and any particulars relating to any such thing.’
        
        , the hearsay rule never applies to books of account
    - - Evidence Act 1977 (Qld), with the effect that appropriately certified DNA evidence can be presented in documentary form without attracting the operation of the hearsay rule.
      - Evidence Act 1977 (Qld) s 95A
  - - - For instance, if a plaintiff sues for damages arising from the breach of a contract, they must begin by showing that a contract existed, and by showing what its terms are
        
        It would obviously be a nonsense for the defendant to argue that the plaintiff must fail because the written contract, or (say) the email communicating acceptance of the contract, were inadmissible documentary hearsay.
      - estate seeking a grant of probate will be required to produce the original Will.
        
        It would be a nonsense for an executor to be challenged in court on the basis that the will was merely the hearsay statement of a now-deceased person
      - A final example is a suit in defamation
        
        A defamation plaintiff must show that the defamatory statement (the defamatory imputation) has been published, that is, made known to a third party
        
        Again, it would be a nonsense if the plaintiff was unable to bring forward the published material due to an argument that the document constituted hearsay.
- - - - Exhibits are physical items which may be brought into the courtroom, and which may even be taken into the jury room. Members of the court may therefore touch, hold, feel, and closely examine the physical items in question.
        
        In Kozul v the Queen (1981) 147 CLR 221, the defendant was accused of shooting Rajkinoski with a revolver. Kozul’s defence was that he had pointed the revolver in the direction of Rajkinoski in self-defence, with no intention of actually shooting; however the pistol had no safety-catch, and when his hand was struck, the weapon discharged. The pistol itself was produced in court
        
        High Court determination; Consequently, it seems that while experimenting with exhibits is not permitted, a certain amount of physical manipulation of the exhibit is permitted
      - it is important to understand how to distinguish an exhibit from a document
        
        The two are not always clearly identifiable
        
        Using a T-Shirt with a slogan printed on it - . if the purpose of introducing the item is to request that the court consider the data recorded on the item, it is probably a document; if not, an exhibit.
        
        The key question is whether the item is relevant in itself (real evidence), or whether the item is relevant because of the information that can be retrieved from it (document).
    - - are two general types of demonstration
        
        The first type of demonstration is where a witness, who is giving oral evidence, demonstrates an action that they are also trying to describe orally.
        
        in this situation the primary evidence is still the oral evidence, and the real evidence is just an aid to understanding.
        
        The second type of demonstration is where elements of the offence are re-enacted for the benefit of the court. The biggest challenge facing re-enactments is accurate replication.
    - - . They take note of the witness’ entire presentation in court, including the witness’ manner of dress, tone of voice, mannerisms, and general presentation
        
        Because the judge and jury perceive these things directly, they are by definition real evidence.
      - Judges and juries will inevitably obtain three types of information from witnesses:
        
        Information directly from testimony
        
        Information as to credibility:
        
        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 English?
        
        Did the witness have a physical disability?
        
        Is the witness of normal intelligence?
    - - A ‘view’ is an excursion by the court, to a place relevant to the trial, to see things for themselves
      - The common law rules, as they apply in Queensland, do not formally regard views as evidence at all.
        
        The purpose of a view, at common law, is to enable the court to understand the evidence; not to receive new evidence.
      - In Scott v Numurkah Corporation (1954) 91 CLR 300, the judge visited the scene of the dispute (a community hall) but correctly did not take those observations into account.
      - Under the Uniform Evidence Act, views are regarded as evidence, and are conducted under essentially the same circumstances as courtroom demonstrations. (Cth)