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

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

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

1

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

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

● Where the original document is a notice served on the opponent

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

● Where the original document has been lost or destroyed

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

● Where the opposing party orally admits the contents of the document

● 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

● Statutory exceptions

1.1 Evidence Act 2008 (Vic)

The UEA made significant changes to common law principle including the adoption of a more s

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 records2

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 evidence and proving copies S 48 sets out an extensive list of how documents may be proved 3

3 S 48 provides the ways in which documents may be proved, including

● Tendering the document 4

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

● Evidence of admissions as to the contents of the document by a party (note s 48(3) ) 6

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

Case Study

Read Butera v DPP (1987) 164 CLR 180

The Federal Court in Eastman7noted 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 the tape ‘notwithstanding the provisions of s 48 (1)(c)’8 Sperling J later summarised how

transcripts may be used in R v Cassar and Sleiman (Judgement No 17)9

2

ALRC 26 xxxvii

3

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

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 aide-memoire 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 s137.10

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, lead evidence authenticating it and tender the ‘hard copy’.11

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

(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)

● The exceptions to the hearsay rule (Part 3.2)

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

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

● 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:

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

11

LC 26, 358- 359 [ 654].

have had sufficient opportunity acquire knowledge of the person’s handwriting 12

● Where the witness has regularly seen the handwriting

● Handwriting experts

● By the jury itself

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 they are most often used for the sole purpose of helping the jury understand other evidence A witness should attest to the 13 preparation and reliability of the map or chart See also s 43A which provides that evidence may

be given in the form of charts, summaries or other explanatory material if it appears that the material would be likely to aid its comprehension of other evidence

S 29(4) Evidence Act 2008 (Vic) mirrors the former s 43A Evidence Act 1958 (Vic) and provides that evidence may be given in the form of charts, summaries or other explanatory material if it appears that the material would be likely to aid its comprehension of other evidence

S 72 Evidence Act 1958 (Vic) currently provides that certified copies of certain maps and documents are prima facie evidence for the same purposes and same extent as the originals This

will be re-enacted in the Survey Co-Ordination Act 1958

2.3 Fingerprints

Legislation

Crimes Act 1958 (Vic) ss 464K 464Q –

2.4 DNA Profiling and Forensic Procedures

Reading

Crimes Act 1958 (Vic) Ss 464 R- 464ZFA

See also Opinion Evidence

J Gans and G Urbas, ‘DNA Evidence in the Criminal Justice System’, Trends

and Issues in Crime and Criminal Justice, No 226, May 2002, Australian

Institute of Criminology: at

http://aic.gov.au/publications/current%20series/tandi/221-240/tandi226.html

13

2.5 Views and demonstrations

Legislation

SS53, 54 Evidence Act 2008 (Vic)

Case Study

Read Kozul v The Queen14 and answer the following questions:

1 What was the basis of D’s appeal?

2 According to Gibbs CJ and Mason J, how should the jury use exhibits?

3 Can the results of the examination of an exhibit stand in the place

of evidence?

4 Did Stephen and Murphy JJfind that the trial judge’s direction to the jury was a proper one? Why?

5 Did Stephen and Murphy JJ differ from Gibbs CJ and Mason J on the reasonable use of exhibits during deliberation by a jury?

6 Which view do you prefer?

7 What is the effect of s 53(4) Evidence Act 2008 (Vic)?

Demonstrations, experiments and inspections are classed as views and are all evidence under s 54

Evidence Act 2008 (Vic) S 54 represents a significant departure from the common law because it

provides that views can be evidence

As with the common law, views should not be ordered unless the parties have reasonable opportunity to be present S 53(3) provides a list of considerations to be taking into account in the judge’s determination whether or not to order a demonstration, experiment or inspection be held Note that s 52 provides:

This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence

S 53 provides for views (demonstration, experiment, and inspections), which makes s 419 Crimes

Act 1958 (Vic) redundant The judge must be satisfied that the parties will be given a reasonable

opportunity to be present and that the judge and jury will be present The judge is also to consider whether the parties will be present, whether the demonstration, experiment or inspection will assist the court and the danger that that the view may be unfairly prejudicial, misleading, confusing or cause an undue waste of time

As at common law, the court is precluded by s 53(4) from conducting experiments in the course 15

of deliberations

14

(1981) 55 ALJR 377

15

Kozul v the Queen (1981) 55 ALJR 377