LAWS13010 Evidence and ProofTopic 3 – Methods of Proof

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

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

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.

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.

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.

Estoppels

An estoppel will stop a party from bringing their case (in whole or in part) when it applies.

It’s 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:1.Between the same parties2.Litigating the same matter/issue3.In the same legal capacities as they did in a previous case4.And the matter has been litigated all the way to final judgment.

Estoppels

2 types:

1.Cause of action estoppel (res judicata, double jeopardy): applies to the case as a whole, operates in civil and criminal cases

2.Issue estoppel: applies only to individual factual issues, only in civil cases

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?

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]

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

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)

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

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-incriminationEvidence Act 1977 (Qld), s.10

Client Professional PrivilegeLegal Profession Act 2007 (Qld), s.491(1)

Parliamentary PrivilegeParliament of Queensland Act 2001 (Qld) s.8Parliamentary Privileges Act 1987 (Cth) s.16

Public Interest Privilege

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.

Observations evidence can be difficult to distinguish from some opinion evidence. Consider:

“I heard a gunshot outside.” (Opinion)“I heard a loud bang outside.” (Observation)

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.

Example: 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.

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.

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

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?

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 injured

in a motor vehicle accident

Real Evidence - Demonstrations

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?

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.

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.

Scott 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

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