• The Uniform Evidence Law (‘UEL’) has been adopted by several Australian jurisdictions; in NSW it was adopted as the Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW).
  • There are three main forms of evidence:
    • testamentary evidence,
    • documentary evidence, and
    • other evidence.
  • Testimonial evidence:
    • Testimonial evidence is also known as:
      • oral evidence,
      • verbal evidence, or
      • witness evidence
    • Rules of testimonial evidence: UEL pt 2.1
    • There are rules about:
      • who can give evidence,
      • how witnesses may give evidence, and
      • how witnesses may be questioned.
  • Documentary evidence:
    • Documentary evidence is ‘any record of information’.
    • Rules of documentary evidence: UEL pt 2.2, Dictionary.
    • The rules stipulate:
      • what counts as documentary evidence, and
      • how documents may be used in court.
  • Other evidence:
    • Other evidence is any evidence that is neither testamentary nor documentary.
    • Other evidence may also be known as:
      • real evidence, or
      • demonstrative evidence.
    • The distinguishing feature of other evidence is that the jury can perceive directly.
    • Other evidence includes:
      • physical evidence (eg weapons, blood, etc),
      • the demeanour of witnesses, and
      • views (experiments, demonstrations or inspections).
    • Rules of other evidence are found in the:
      • UEL pt 2.2, and
      • common law.
    • The rules govern:
      • the presentation of other evidence,
      • how it may be handled by the jury, and
      • what inferences may be drawn from it.
  • Example of different types of evidence: State of Florida v Zimmerman (short video):
    • George Zimmerman was tried for the killing of Trayvon Martin.
    • Martin’s mother is in the witness box, being called to give her opinion about the identity of the person heard screaming for help.
    • The evidence presented was:
      • testimonial (the witness gave evidence directly), and
      • documentary (the recording played to the witness).
    • The sounds (cries for help) were not ‘other evidence’ because they were a reproduction from a tape — it was documentary evidence.
  • The distinction between forms of evidence can be difficult to appreciate sometimes (eg fingerprints).

Testimonial evidence

  • Testimonial evidence is given orally by the witness in the witness box.
  • It also known as:
    • oral evidence,
    • verbal evidence,
    • testimony, and
    • witness evidence.
  • It is the primary form of evidence in common law adversarial trials.
    • However documentary evidence is being used increasingly in civil trials (as distinct from criminal trials).
  • The UEL provides for witnesses: see, eg, Evidence Act 1995 pt 2.1.
  • Testimonial evidence is preferred in the adversarial system because:
    • the evidence is given under oath or affirmation,
    • the evidence is given directly from the witness’s mouth,
    • counsel can control the presentation of the evidence by questions,
    • the reliability of the evidence may be tested by cross-examination, and
    • the veracity of the evidence may be assessed by the witness’s demeanour.
  • Evidence given under oath or affirmation
    • Witnesses may choose to take an oath or to make a promise to tell the truth in court.
    • The swearing or promising to tell the truth makes the witness subject to a charge of perjury (punishably by imprisonment) if they are court telling lies in court.
    • Some witnesses (eg children) may give unsworn evidence, which permits them to give evidence but does not make them subject to a charge of perjury if they lie.
    • There is no difference between taking an oath or making a promise (affirmation), but it is thought that those who take an oath believe they will be punished by God if they lie.
  • Evidence given directly from witnesses’ mouths
    • It is thought that hearing the evidence directly from eyewitnesses (from memory) rather than through documents (such as statements) allows for the best evidence.
    • Hearing what happened directly is the closest a trier of fact will come to having experienced the fact directly.
    • Awareness of the serious defects in this model of evidence is increasing:
      • The fragility of human memory means testimonial evidence given months or years after events can be very unreliable, fading and being distorted over time.
      • Research indicates human observation of events is highly problematic.
      • Testimonial evidence is very time-consuming.
        • This will be exacerbated when interpreters are required.
        • However, efficiency should not be determinative in a system that seeks to find the truth in the most fair and open way possible.
  • Counsel control of presentation of evidence
    • Evidence is given in court through a question and answer form.
    • Each witness is called in turn, examined, then cross examined.
    • Witnesses cannot ordinarily tell their story without interruption.
      • This can sometimes distort the evidence because it is given in the order that counsel thinks appropriate, rather than the way in which people ordinarily recount stories.
    • Witnesses give their evidence in one go; there is no switching between evidence so as to present the evidence in a chronological manner, and witnesses are not normally recalled.
    • There is now provision for evidence to be given in ‘narrative form’ in some circumstances.
  • Testing evidence through cross-examination
    • Questioning witnesses by counsel is a hallmark of the adversarial system.
    • It has long been thought of as one of the best mechanisms for discovering the truth.
    • It allows counsel to draw out inconsistencies in a witness’s evidence or to expose lies.
    • The value of cross-examination may be over-estimated:
      • Different people respond to cross-examination differently.
      • Some witnesses are inherently vulnerable to cross-examination:
        • They may be perceived as telling lies when they have simply succumbed to clever techniques.
      • Giving evidence in court can be nerve-wracking for witnesses.
      • Those who are less vulnerable may give evidence that appears more credible than it might be (eg regular witnesses like police officers).
    • The vulnerability of witnesses is a very real problem:
      • People communicate and respond to questioning differently depending on age, culture and personality.
      • Judges and juries are not always aware of the differences and the effects they can have on the appearance of truthfulness.
      • Measures have been taken to temper the problem including giving pre-recorded evidence or evidence via CCTV.
  • Veracity of evidence assessed by witnesses’ demeanours
    • It is thought that by watching a witness giving evidence the trier of fact can determine the truthfulness from their behaviour — body language and mannerisms.
    • Studies show that the ability of humans to detect lies is in the order of 50% — no better than chance — despite people thinking they are good at knowing when someone is lying.

Outline of the legislation — Evidence Act 1995 (NSW)

  • Part 2.1 Division 1 — Competence and compellability of witnesses
    • Section 12 — Competence and comepllability
    • Section 13 — Competence: lack of capacity
    • Section 14 — Compellability: reduced capacity
    • Section 17 — Competence and compellability: defendants in criminal proceedings
    • Section 18 — Compellability of spouses and others in criminal proceedings generally
    • Section 19 — Compellability of spouses and others in certain criminal proceedings
  • Part 2.1 Division 3 — General rules about giving evidence
    • Section 26 — Court’s control over questioning of witnesses
    • Section 27 — Parties may question witnesses
    • Section 28 — Order of examination in chief, cross-examination and re-examination
    • Section 29 — Manner and form of questioning witnesses and their response.

Feld, Alexander and Bagaric, ‘Verbal Evidence: Witnesses — Competence, Compellability and Evidence in Chief and Cross-Examination’

Notes drawn from: Francine Feld, Theo Alexander and Mirko Bagaric, Uniform Evidence Law: Principles and Practice (CCH, 2nd ed, 2015) ch 3 [3.1]–[3.2.4].

  • Verbal evidence is the most common for given in courts.
  • This usually involves a person physically appearing and verbally expressing their views of the relevant event.
  • Attendance is normally time consuming, inconvenient and stressful.
  • The importance of verbal evidence is so great that people can be compelled to attend court through a subpoena stamped by the relevant court and served on an individual.
    • The subpoena contains the relevant matter and the date upon which attendance is required.
    • Refusal to attend can result in a charge for contempt of court and penalised with imprisonment.
    • Subpoenas transform all who are served into witnesses.
  • Apart from voting, attending court is the only compulsory activity that all citizens must undertake when requested.
  • A subpoena is not necessary: many individuals attend voluntarily for various reasons.
  • Subpoenas are served where a party is not certain that an individual will attend court.
  • Police and prosecution agencies subpoena all witnesses as a matter of policy.
  • A party’s most important consideration when determining whether to call a person as a witnesses is whether the evidence they give will be favourable to the case.
    • For this reason, best practice is to interview the prospective witness beforehand and request they sign a document detailing their account to predict what the witness will say in court.
      • It is rare for a witness to renege, but if they do the statement may be used to discredit them.
  • Competence and compellability are related but distinct concepts:
    • Competence focuses on who is qualified to give evidence in court.
    • Compellability focuses on who can be forced to give evidence.
  • The general rule is that all individuals are competent and compellable, subject to certain exceptions.
  • UEL s 13 — lack of capacity:
    • A person is not competent to give evidence about a fact if, for any reason (including mental, intellectual or physical disability) they cannot overcome an incapacity to:
      • understand a question about the fact, or
      • give an answer that can be understood to a question about the fact
    • This does not prevent them from being competent on other facts.
    • A person is not competent to give sworn evidence about a fact if they do not have the capacity to understand that they are under an obligation to give truthful evidence.
    • A person incompetent to give sworn evidence give unsworn evidence if the court has told them that:
      • it is important to tell the truth,
      • they may be asked questions that they do not know or remember the answer to, and should tell the court if this occurs, and
      • they may be asked questions that suggest certain statements are true or untrue and that they should agree with the statements that they believe are true and should feel no pressure to agree with statements they believe are untrue.
    • It is presumed that a person is not incompetent unless the contrary is proved.
  • The legislation provides for two types of evidence: sworn and unsworn.
  • It excludes two categories of people: young people and the mentally impaired.
    • All adults not suffering any type of manifest mental impairment are presumed competent.
  • Sworn and unsworn evidence do not seem to be different in qualitative terms.
    • Unsworn evidence has probative weight and the Act does not state that it is necessarily a lower type of evidence.
  • The level of cognitive ability is similar for sworn and unsworn evidence.
    • Both require the witness has capacity to understand and answer relevant questions.
    • A witness must understand they have an obligation to tell the truth to give sworn evidence, but where they cannot comprehend this they may still be able to understand and answer questions, and therefore give unsworn evidence.
      • The requirement that the judge inform the unsworn witness to tell the truth seems futile given they cannot comprehend a duty to tell the truth.
    • The witness must be able to give answers that can be understood.
  • Although the legislation contains relatively simple tests, there are no objective standards governing witness capacity (eg to understand the concept of ‘obligation’).
    • Ultimately, issues of competence are determined by the impressionistic views of the judges regarding the intelligence and articulation of prospective witnesses.
    • The main criteria that govern the application of the tests and the age of the child or apparent intelligence of the witness — precedent is of little value.
  • This area of law could be improved by removing the uncertainty and using fixed age and scientifically determined IQ thresholds for competence.
    • Where the criteria are met but the person remains unable to comprehend the notion of truth, no or little importance should be given to their evidence.
  • Subject to certain exceptions, all competent witnesses are compellable:
    • Less common (‘minor’) exceptions:
      • The Queen, her representatives, and the leaders of other countries: UEL s 15(1).
      • Members of an Australian parliament if court attendance would prevent them attending a sitting of parliament: UEL s 15(2).
      • Judges and jurors, unless in the case of jurors the matter could affect the conduct of the proceeding: UEL s 16.
      • Where it is likely that capacity to give evidence could only be achieved after considerable cost or delay, and the subject matter of the evidence has already been obtained from another person: UEL s 14.
    • Family members of the accused:
      • Family members of the accused may apply to the judge to be excluded from giving evidence — UEL s 18:
        • Only applies to criminal proceedings.
        • The spouse, de facto partner, parent or child may object to being required to give evidence generally or of a communication between the person and the accused as a witness for the prosecution.
        • The court must grant the application if it finds that harm would be likely be caused to the prospective witness or the relationship, the nature and extent of which outweighs the desirability of the evidence being adduced in court.
        • The court may take into account:
          • The nature and gravity of the offence.
          • The substance and importance of any evidence that the person might give and the weight that is likely attached to it.
          • Whether any other evidence concerning the matters to which the evidence would relate is reasonably available to the prosecutor.
          • The nature of the relationship.
          • Whether the person would have to disclose matter received in confidence.
      • UEL s 18 has no application to certain offences against children: UEL s 19.
      • UEL s 18 recognises that if a family member gives evidence against the accused it may be viewed by the accused as a betrayal — the rationale is loyalty.
        • Loyalty is a desirable virtue, and one that should be promoted by law: see, eg, Mirko Bagaric and Richard Haigh, ‘Loyalty and the Law: Dealing Legally with Mothers, Archbishops and Football Clubs’ (2001) 10 Nottingham Law Journal (UK) 1.
      • Although such an emphasis is placed on loyalty, in practice applications for exclusion nearly always fail — judges rank the need for evidence above the interests of the relationship: see, eg, R v Flentjar (No 2) [2008] NSWSC 648; R v Fowler [2000] NSWCCA 342; cf DPP v Nicholls [2010] VSC 397 (the only case where an application was upheld, but the court still admitted a written statement by the spouse against the accused).
    • The accused themselves:
      • The accused cannot be compelled to give evidence.
      • This is based on the long-protected notion of the right against self-incrimination.
      • UEL s 17 — Competence and compellability — accused in criminal proceedings:
        • Only applies to criminal proceedings.
        • Excludes an accused from competency to give evidence for the prosecution.
        • Excludes an associated accused from competence for or against the accused, unless being tried separately from the accused.
          • An associated accused is a person who has been charged with an offence that relates to the offence for which the accused has been prosecuted, where prosecution has not been finalised: UEL pt 1 Dictionary.
      • UEL s 20 — Comment on failure to give evidence:
        • Only applies in a criminal proceeding for an indictable offence.
        • The judge or any non-prosecuting party may comment on a failure of the accused to given evidence, but unless the comment is made by another accused in the proceeding, the comment must not suggest that the accused failed to give evidence because they were, or believed they were, guilty.
      • UEL ss 17, 20 confer the right of silence on an accused at trial.
        • This right also exists at the pre-trial stage: UEL s 89.
        • The right has been modified in NSW: UEL s 89A.

Hunter and Cronin, ‘The presentation of witness testimony’

Notes drawn from: Hunter and Cronin, Evidence, Advocacy and Ethical Practice (Butterworths, 1995) 301–306.

  • Typically the presentation of information in court involves the prosecution opening its case by setting the factual scene and summarise the evidence that supports its case.
  • The prosecution calls its witnesses, who are questioned and cross-examined in turn.
  • When the prosecution has closed its case, the defence case follows similarly.
  • Information is not presented in a chronological story format.
  • The question and answer format results in fragments of information that jurors arrange into the story as the evidence unfolds.
  • Jurors must order and understand the details presented.
  • The narrative style introduced by the prosecution does not reappear until the defence opens its case.
  • Final summation is a recap of the cases by the parties and then by the judge.
  • The Australian Law Reform Commission (‘ALRC’) referred to psychological studies that indicate question and answer form can distort the content of witnesses’ testimony and that narrative form may be preferable: Australian Law Reform Commission, Evidence, (Interim) Report No 26 (1985) vol 1 [607]–[609].
  • Conversely, the Marquis study found that questioning promoted recollection and more complete witness accounts, more than compensating for distortions caused: K H Marquis, J Marshall and S Oskamp, ‘Testimonial Validity as a Function of Question: Form, Atmosphere and Item Difficulty’ (1972) 2 Journal of Applied Social Psychology 167.
  • Lind et al found that the narrative style creates an impression of more credible witnesses than the fragmented question and answer format: E A Lind et al, ‘Social Attributions and Conversation: Style in Trial Testimony’ (1978) 36 Journal of Personality and Social Psychology 1558.
    • Control of witnesses is perceived as reflecting counsel’s low evaluation of the witness, and greater freedom in testifying is taken to correlate with a high opinion of the witness.
  • The research therefore suggests:
    • The approach to eliciting testimony influences content, completeness and reception.
    • Directed testimony can increase recall at the expensive of accuracy and credibility.
  • The value of the studies is uncertain due to the experimental settings that fail to replicate the courtroom context and dynamics of lawyer-witness interaction.
  • The ALRC did, however, recommend use of narrative form where appropriate.
  • The legislation allows for a party to have its witnesses testify in narrative form, subject to the court’s approval: see, eg, Evidence Act 1995 (Cth) s 29.
    • A party may question a witness in any way it thinks fit.
      • This is subject to ch 2 and directions of the court.
    • The court may direct a witness to give evidence wholly or partly in narrative form.
      • The court may direct this:
        • on its own motion, or
        • on application of the party who called the witness.
    • The direction may include directions about the way in which evidence is to be given.
    • Evidence may given with explanatory material if the material would be likely to aid comprehension of other evidence.
  • The court may make orders regarding witnesses ‘as it considers just’ in relation to the way witnesses are to be questioned, the order in which they testify, the presence of behaviour ‘of any person in connection with the questioning of witnesses’ and the production of documents and things in connection with the questioning of witnesses: Evidence Act 1995 (Cth) s 26.
    • ‘Each experienced counsel … acquaints witnesses with the way … they should behave when being cross examined. It is fairly common for counsel … to tell the witness that [they] must listen to the question asked and then answer that question, and only that question, as briefly as possible. Many counsel tell witnesses that they should answer “Yes” or “No” to the questions in cross examination: unless they consider that such an answer might be misunderstood, in which case as brief an answer as possible must be given. The witness is reminded that the usual consequence of a long-winded answer is that the cross-examiner gains more ammunition to fire back at the witness than would have been the case had the witness kept the answer brief’: Justice Peter Young, ‘Practical Evidence: Unresponsive Answers’ (1991) 65 Australian Law Journal 344.
  • The law reinforces the desirability of party control to such an extent that if a witness is ‘out of control’ and volunteers information unresponsively, the court is obliged to strike out the answer if requested by counsel.
    • A Judge of District Courts; Ex Parte McNamara (1990) 48 A Crim R 660 (Queensland Supreme Court, Full Court):
      • Prosecution sought pre-trial orders to suppress the identity of a complainant it intended to cal as a witness.
      • Trial involved a charge of official corruption by policy officers relating to a prostitution ‘protection racket’.
      • The witness wished to have her identity concealed because she feared publicity would cause embarrassment by revealing she had worked as a prostitute in the past.
      • McPherson J cited evidence law commentators and 19th century English case that demonstrated common law resistance to protecting witnesses from embarrassment.
        • ‘He or she is exposed to scrutiny in the witness-box not as an “airy nothing” but as an identifiable person with a local habitation and a name.’
        • ‘It may be asked whether a person should or need be subjected to the ordeal envisaged by the complainant here. The question was at one time the subject of extensive debate by textwriters on the law of evidence. Wigmore on Evidence (Chadbourne revised ed), Vol IIIA, … points out (p 859, para 986) that a privilege against “disgracing answers” clearly existed in the early 1700s; “but in some obscure way the privilege fell into disuse, and its exercise was not revived again until the beginning of the 1800s”.’
        • ‘By 1853 Starkie’s treatise had reached its fourth edition, in which (at pp 207–8) the opposing considerations are lucidly stated: “… it is highly desirable that the jury should thoroughly understand the character of the persons on whose credit they are to decide upon the property and lives of others; and neither life nor property ought to be placed in competition with a doubtful and contingent injury to the feelings of individual eyewitnesses. On the other hand, it may be said that it is hardthat a witness should be obliged upon oath to accused himself of a crime, or even to disgrace himself in the eyes of the public; that it is a harsh alternative to compel a man to destroy his own character, or to commit perjury; that it is impolite to expose a witness to so great a temptation; and that it must operate as a great discouragement to witnesses, to oblige them to give an account of the most secret transactions of their lives before a public tribunal.’”
        • McPherson J refused the suppression order, but left it open for the trial judge to make an order at the trial.
        • His Honour summarised the reluctance of courts to keep witness identities secret: ‘Whether [the witness] will maintain her determination [not to testify if her identity is disclosed] in the face of the assembled trial court remains to be seen. It may be salutary for her, and for the integrity of the legal system, if she be asked to give her name in the presence of the jury. If she then declines to do so the jury may find her refusal to answer of assistance in assessing her credibility. The judge at trial may then need to decide whether he should commit her for contempt, or can extend to her some measure of the protection that she now claims.’
  • Kicking back against lawyers or tactics of control may be ill-judged or intemperate, thus damaging the party’s case.
    • It may justify admonition from the judge or from counsel.
    • Penman found that control of counsel by judges and control of witnesses by counsel were presented as aiding mutual comprehension, but had the incidental effect of being coercive and humiliating for the person being rebuked: Penman, ‘Facework and Politeness: Multiple Goals in Courtroom Discourse’ (1990) 9 Journal of Language and Social Psychology 15.
    • Witnesses can, sometimes, successfully challenge the trial process by subtle non-cooperation.
  • Social psychological studies have indicated the following factors influence perceptions of witnesses as reliable and truthful:
    • social attractiveness,
    • the speed of speech,
    • gender,
    • accent or dialect, and
    • confidence that is displayed in answering questions.
  • Similarly, studies suggest the following affect the way jurors may interpret testimony:
    • the format of questioning,
    • different speech styles, and
    • the appearance of participants.
  • Social psychology research can be used to enhance advocacy goals.
  • Bennett and Feldman’s thesis on ‘storytelling’ is that jurors arrange trial information into a narrative framework and then evaluate it with the plot as the centrepiece: W L Bennett and M S Feldman, Reconstructing Reality in the Courtroom (Rutgers University Press, 1984).
    • Given the prosecutor’s opening statement is the first time that the jury hears a possible narrative plot, they may have already settled on the story before the defence has an opportunity to present its narrative.
      • The order of prosecution followed by defence is used because the prosecution has the burden of proof, but this may be a significant persuasive advantage.
  • Courts are willing to suppress the identity of a limited range of witnesses:
    • Victims of blackmail on the basis that to do otherwise would make it difficult to prosecute for the offence: Socialist Worker Printers and Publishers Ltd; Ex parte A-G [1975] QB 637, 650.
    • Informers: Cain v Glass (No 2) (1985) 3 NSWLR 230, 246–247; Re v Savvas (1989) 43 A Crim R 331.
    • An accused wishing to avoid publicity that might adversely affect a pending murder trial: Mr C (1993) 67 A Crim R 562.
    • Children: see, eg, Children (Criminal Proceedings) Act 1987 (NSW) s 11.

Hunter and Cronin, ‘Witnesses — issues of communication’

Notes drawn from: Hunter and Cronin, Evidence, Advocacy and Ethical Practice (Butterworths, 1995) 306–310.

  • Until 1731 proceedings in England were pleaded in English, argued in French and the court’s decrees were enrolled in Latin: P W Young and M W Young, ‘Legal Language’ (1990) 64 Australian Law Journal 761.
    • English courts would go to considerable lengths to provide interpreters for non-English defendants: see, eg, R v Boroski (1682) 9 Howell’s State Trials 1.
  • In 1731 English became the language of the courts: Proceedings in Courts of Justice Act 1730, 4 Geo 2, c 26.
    • The Act stated that ‘many and great mischiefs do frequently happen … from the proceeding in courts of Justice being in an unknown language, those who are summoned and impleaded having no knowledge or understanding of what is alleged for or against them’.
    • NSW and Victoria are the only states where the 1731 Act has been repealed.
  • Fairness in court proceedings requires that they be understood by all involved.
    • A judge or magistrate may translate a non-English document which has been put into evidence, but procedural fairness requires that the translation be put to the parties: Zoeller v Federal Republic of Germany (1989) 91 ALR 341.
  • An interpreter has the task of removing linguistic and cultural barriers that prevent a witness understanding or communicating in the proceedings.
    • This is most common where the witness does not speak English.
    • This may also occur where the witness is deaf or mute: see, eg, Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414.
  • Non-English speakers have participated in criminal trials in Australia since early times, coming from a wide variety of European, Asian and Pacific cultures.
  • Witnesses who do not speak English have the right to have questions put in their own language and their answers interpreted: see, eg, Dairy Farmers Cooperative Milk Co Ltd v Acquilina (1963) 109 CLR 458, 464; R v Johnson (1987) 25 A Crim R 433 (Queensland Court of Criminal Appeal); Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 [18]–[19]. See also P W Young and M W Young, ‘Legal Language’ (1990) 64 Australian Law Journal 761; A Crouch, ‘The Way, the Truth, and the Right to Interpreters in Court_ (1985) 59 Law Institute Journal of Victoria 687.
    • This was previously at the discretion of the trial judge.
    • Court practice and statutory amendments have shown an appreciation of the need to assist trial participants.
  • Use of interpreters is not without controversy: Hatzigeorgalis v Ange (No 1) (Unreported, Supreme Court of New South Wales Equity Division, Young J, 27 March 1991).
    • A Greek-speaking witness claimed that questioning conducted with the interpreter and questioner speaking at the same time was distracting and unfair, and requested that the counsel punctuate their sentences with pauses to permit partial translations during questioning.
    • Young J rejected the request on the basis that the distraction should be taken into account by the listener and that interpretation in the manner requested could lead to an abuse of the right to use an interpreter by allowing the witness extra time to answer a difficult question if they understand some English.
      • This criticism is recurring in relation to the use of interpreters.
  • Interpreters have significant limits in resolving communication difficulties:
    • There is debate about how interpreters fix on the meaning of words.
    • Some interpreters may not give an accurate interpretation of the speaker’s words.
    • The ALRC noted that a literal translation is not necessarily more precise than a conceptual translation: Australian Law Reform Commission, Evidence, (Interim) Report No 26 (1985) vol 1 [284].
      • In a trial involving a charge of sexual assault, the wife of the accused was asked ‘Is your husband infatuated with your daughter [the complainant]?’ which was translated literally as ‘Does your husband love his daughter?’; the wife answered affirmatively.
  • Cross-cultural misinterpretations are not always remedied by interpreters:
    • D Eades, Aboriginal English and the Law (Queensland Law Society Continuing Legal Education Department, 1992) 26:
      • ‘Aboriginal English speakers often agree to a question even if they do not understand it. That is, when Aboriginal people say “yes” in answer to a question it often does not mean “I agree with what you are asking me”. Instead it often means “I think that if I say ‘yes’ you will see that I am obliging, and socially amenable and you will think well of me, and things will work out between us”.’
      • ‘… silence … can easily be misinterpreted as evasion, ignorance, confusion, insolence or even guilt’ in the courtroom, but do not have the same interpretation in Aboriginal culture.
    • Direct eye contact is associated with honesty and confidence in Anglo-based middle class cultures, but in other cultures this may not be the case — averting eye contact can communicate recognition of authority instead.
  • Counsel will often fail to anticipate potential linguistic or cultural misunderstandings.
    • Where they are anticipated, it is acceptable to discuss with the interpreter their understanding of the of the term and ensures they can translate accurately.

Hunter and Cronin, ‘The language of trial questioning’

Notes drawn from: Hunter and Cronin, Evidence, Advocacy and Ethical Practice (Butterworths, 1995) 310–313.

  • Research indicates child witnesses appear more effective and competent (‘Answered more questions, were less anxious and unhappy and generally more cooperative’) when language was tailored to their level of comprehension: J Cashmore and K Bussey, ‘Child Witnesses in Court’ (1989) 1 Judicial Officers Bulletin 3.
  • Cross-examination may challenge testimony, and some lawyers may attempt to confuse a witness in cross-examination.
  • Children may have particular difficulties with the specific vocabulary used by lawyers (eg ‘taunt’, ‘fabrication’, and forms of legal address, idioms and double negatives), as well as complex and repetitive questions: M Brennan and R Brennan, Strange Language: Child Victims Under Cross Examination (RMIHE, 1988).
  • Legal language employed by lawyers often uses phrases like ‘is that not true?’ or ‘is that not right’ which can have a confusing effect.
  • Jumping between topics and shifting from highly personal to mundane questions can cause the witness to become disorientated and confused about the general line of questioning.
  • By nominalising language to preserve their clients’ distance from the criminal activity being investigated, lawyers may also confuse children in particular:
    • ‘… young children … are being asked to answer questions about the details of their assault as though they had been watching rather than participating. Given the highly personal and traumatic aura which surrounds incidents of child sexual assault, the process of nominalisation can only be construed as adding to the language pressures exerted on the child in court’: M Brennan and R Brennan, Strange Language: Child Victims Under Cross Examination (RMIHE, 1988) 66.
  • Lawyers often ask long, complicated, multifaceted and unclear questions with a ‘convoluted preamble, confused centres and rhetorical endings which invite no response’, though an answer is still required: M Brennan and R Brennan, Strange Language: Child Victims Under Cross Examination (RMIHE, 1988) 66.
  • Witnesses can have difficulty understanding what is expected of them when counsel use their previous statements in a questioning format, prefaced by phrases such as ‘I put it to you’ or ‘I suggest to you’.
    • This is a particular problem for children who are often expected to recall exact words in events that took place long before the trial, and are constrained to give a yes or no answer.
  • Children feel resentment if a judge does not intervene to protect them from ‘totally irrelevant things’ and should avoid being made to feel alienated.
  • In some jurisdictions special arrangements can be made for particularly vulnerable witnesses such as children under a certain age and persons with intellectual impairment or cultural differences, to mitigate the traumas associated with testifying.
    • This may include screening the accused from the witness, allowing a support person to accompany the witness, or recording the witness’ evidence.
      • These methods do not address communication difficulties, however.
  • Basic rules for questioning immature, non-native English speaking, intellectually incapacitated, or otherwise impaired witnesses:
    • Use simple, direct and specific questions.
    • Favour the concrete over the abstract, direct over the circular, and use active rather than passive voice.
    • Introduce unfamiliar words first, before using them in a question — ensure the witness understands what the words mean before putting them into context, and then asking the question.
    • Avoid parenthetic asides.
    • Limit each question to one point.
    • Avoid asking the witness to make general comparisons directly — allow the tribunal to draw the comparisons.
    • Put questions relating to length of time, frequency, etc, into the concrete: this may involve breaking the inquiry into several questions such as ‘did you see him in December?’ and ‘did he come each week?’

ABC Television, ‘False Memories’, Catalyst, 18 March 2010 (Dr Jonica Newby)

http://www.abc.net.au/catalyst/stories/2848614.htm

  • In 2002 defrocked priest Paul Shanley became the most hated man in Massachusetts.
  • Shanley now resides in a US prison, convicted of serial child rape.
  • Is it possible the accuser remembers vividly something that never happened?
  • It is frighteningly easy to create false memories.
  • In 2002 four young men came forward with nearly identical accounts of abuse by Father Shanley.
  • The prosecution dropped three of the men; leaving one victim to testify.
  • The jury was confident enough to convict and Shanley was sentenced.
  • The accuser claimed the events were so traumatic that he had walled the memory off in his mind, having no recollection of the abuse until he was an adult, when he saw reports of Shanley in the news and the memories came flooding back.
  • Victims of repeated abuse are much more likely to block it out eventually than if it has only happened once or twice: Associate Professor James Chu, Harvard Medical School.
    • According to one theory on repression there is some kind of process, itself unconscious, that makes things that are too overwhelming or too conflictual unavailable to your conscious memory.
    • Other scientists say that there is no good evidence that memory repression exists.
  • There is very little credible scientific evidence in support of memory repression: Professor Elizabeth Loftus, University of California, Irvine.
    • A multistudy analysis of 11 000 victims of torture and other major trauma where no cases of memory repression was found.
    • Regardless of how logical the theory may sound, it is flimsy.
    • Professor Loftus was not suggesting the victim lied, however.
    • We’re almost at a point where we have a recipe for making people believe false memories:
      • Make a person believe that an experience is plausible.
      • Try to get the person to believe it happened to them.
      • Embellish the belief with sensory detail, engage them in imagination exercises; something that will add detail to that belief.
    • Professor Loftus can implant a false memory of being sick after eating strawberry ice cream in about 25% of subjects.
  • There were many things that made the victim’s evidence believable such as memories of shapes, archways and the room where the abuse occurred: Associate Professor Chu.
  • In regard to ‘alien abductees’ it seems that the individuals are experiencing an episode of isolated sleep paralysis, accompanied by hallucinations upon awakening: Professor Richard McNally, Harvard University.
    • People who experience this may seek out ‘experts’ in ‘alien abduction’ and then they become hypnotised and start to generate imagery of what happened next, causing vivid memories of being in ‘spaceships’, being sexually probed, having intercourse with aliens, etc.
    • Alien abductees had very pronounced psychophysiological reactions to abduction scripts of a magnitude at least as great as with childhood abuse survivors, Vietnam War veterans, and combat-related post-traumatic stress disorder.
    • The false memories of trauma are just as powerful as the genuine memories.
    • Professor McNally sees no evidence that the mind can repress trauma.
      • The more traumatic the event is at the time, the more likely you are to remember it, especially if it is repeated: you don’t find people forgetting they were in Auschwitz.
  • The ‘Memory Wars’ have two sides:
    • One side holds that repeated traumatic events can be walled off in the mind.
    • The other side says repression is not possible.
  • There were anomalies in the victim’s testimony in the Shanley case: Professor Loftus.
    • When first informed of the accusations, his reaction was surprise.
    • He learned that somebody he used to know was making accusations.
    • He went to see a doctor in the military and spent a long time with them.
    • There was a lot of suggestion in the story as he went from having no memory to having ‘memory of years of brutalisation supposed repressed.’
  • In a personal journal the victim wondered to himself whether it had actually happened, or whether he merely thought it had happened because it happened to a friend of his: Robert F Shaw Jnr, Paul Shanley’s attorney.
  • All four victims claimed repressed memory.
  • Robert F Shaw ran Shanley’s appeal on the basis of lack of scientific support for repressed memory, ‘the only evidence against him.’
    • Professors Loftus and McNally, as well as a further 100 memory experts, signed a brief to the effect that repressed memory had no scientific basis.
  • The 2009 appeal had three possibilities:
    • The victim had lied.
    • The victim was telling the truth, but had repressed the memories.
    • The victim has a false memory.
  • Repressed memory is the least scientifically supported hypothesis.
  • The appeal was dismissed; the court did not find anything problematic with admitting evidence of repressed memory.

WFMY News, ‘Eyewitness Testimony’, 9 February 2004

<https://www.youtube.com/watch?v=LRVtYqUcXk4>.

  • To test the accuracy of witness testimony, WFMY conducted an experiment.
  • A person walks into a full lecture theatre and takes the professor’s briefcase.
  • The students were asked to write down everything they remembered.
    • What did the perpetrator look like? — trousers, hair, etc.
      • ACTUAL: Tan zippered jacket, jeans, brown hair combed back.
      • Most students got the clothes right, but many did not.
      • Few students remembered his face and hair colour/length.
    • The professor double-bluffs when he brings the perpetrator in, asking how many students realised it’s a different person.
      • Very few students believed it was the same person.
      • Investigators can knowingly or unknowingly influence eyewitnesses.

Experimental Psychology, ‘Change Blindess’

<https://www.youtube.com/watch?v=38XO7ac9eSs>.

  • An experiment by psychologists Dan Simons and Chris Chabris revealed that the human brain processes very little of what comes in through the eyes.
  • Outline of the experiment:
    • The subject comes up to the counter and is handed a consent form by the first experimenter.
    • As soon as the consent form is signed the subject hands it back to the first experimenter.
    • The first experimenter ducks under the counter to put the form away.
    • The second experimenter then stands up and hands the subject a packet of information and directs the subject into a hallway to be asked questions about it.
  • In 75% of cases, subjects will not notice the change between the experimenters: this is called ‘change blindness’.
    • We often miss significant changes to our visual world from one view to the next.
    • These changes are obvious to people who know they are going to happen.
  • Some people notice the changes, and others don’t, but it is unclear whether this is because some people are simply better at recognising changes, or whether it is because some people happen to be paying attention to a particular detail that changes.

Documentary evidence

  • Under the UEL, ‘document’ is defined broadly to include any record of information (regardless of medium; eg, paper, tape or hard drive).
  • Documentary evidence is the use of a document as evidence of the contents of the document.
  • Provisions relating to documentary evidence are located in the UEL: see, eg, Evidence Act 1995 (Cth) ch 2 pt 2.2; Evidence Act 1995 (NSW) ch 2 pt 2.2.

Feld, Alexander and Bagaric, ‘Documentary Evidence’

Notes drawn from: Francine Feld, Theo Alexander and Mirko Bagaric, Uniform Evidence Law: Principles and Practice (CCH, 2nd ed, 2015) ch 4 [4.2]–[4.2.4].

  • The legislation governs the methods by which documents may be presented as evidence.
    • Admissibility of contents is a separate issue, to be considered later.

Definition of document

  • The UEL Dictionary defines document as any record of information, including:
    • anything on which there is writing, or
    • anything on which there are marks, figures symbols or perforations having a meaning for persons qualified to interpret them, or
    • anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or
    • a map, plan, drawing or photograph.
  • The definition encompasses anything containing a record of information: written paper documents, bottles, food packaging, mobile phones, whiteboards, clothing, computer systems, hard disks, memory cards, DVDs, tape recordings — any items that contain information by writing or other marks would be considered documents.
  • Specific examples:
    • Mobile phone: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264.
    • Computer database: Automotive Dealer Administration Services Pty Ltd v Kulik [2010] VSC 293.
    • Hard disk: Hodgson v Amcor Ltd [2011] VSC 272.
  • The definition may also include (presumably) transitory information contained in computer memory, as long as it can be captured and reproduced.
  • The requirement of marks, etc, having a meaning for persons qualified to interpret them presumably exclude purely decorative symbols that have no meaning (or contain no information) — these would be ‘other evidence’.
  • A video recording (eg, CCTV footage) is considered a document on the basis that it is a series of photographs comprising a visual and permanent record and UEL s 48(4) can therefore permit its contents to be adduced by secondary means (eg, oral evidence): Wade (a pseudonym) v The Queen [2014] VSCA 13.
  • The definition in the UEL Dictionary must be read alongside UEL s 47(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’.
  • The rules of documentary evidence apply only to documents whose contents are of interest in the proceedings — documents in general may or may not be documentary evidence.
    • Documents may be either documentary evidence or other evidence, depending on their evidential purpose.
    • If the purpose of adducing the document is to adduce evidence of its contents, it is documentary evidence and UEL pt 2.2 will apply.
    • If the document is tendered as a thing, UEL pt 2.2 will not apply.
  • Example:
    • A glass bottle with embedded writing (eg, ‘Coca-Cola’ or ‘345 ml’) is a document within the meaning of the Act.
    • If it is being tendered on the basis of its physical properties (eg, it had been used as the weapon in an assault) it will not be documentary evidence; the writing is of no interest to the proceedings and it would be considered ‘other evidence’.
    • If the writing on the bottle is of consequence (eg, the volume stated was not the actual volume of the bottle, and is the subject misleading and deceptive conduct litigation), the bottle can be considered documentary evidence.
  • Under the common law, a distinction was made between physical things bearing written inscriptions and documents whose written contents amount to an instrument or writing that has some effect material to the case: Commissioner for Railways (NSW) v Young (1962) 106 CLR 535 [9] (Dixon CJ).
    • Physical things were not documentary in nature if the writing or marks were relied on only as part of the appearance of the thing.
    • At common law, labels affixed to objects, if used to identify those objects, fell outside the documentary evidence rules because they were considered ‘inscribed chattels’ and therefore the originals were not required.
      • Witnesses could give evidence of the contents of the labels as if describing the appearance of the objects.
  • The UEL instead regards labels as documents, given they are ‘records of information’ tendered for their contents.
  • In the UEL Dictionary, a reference to a document also includes a reference to part of the document or a copy, reproduction, duplicate, etc.
  • The copy need not be exact, as long as it is identical in all relevant respects: UEL s 47(2).

Proof of contents of documents

  • The ‘original document’ rule has been abolished:
    • Under common law, the ‘original document’ rule (an extension of the ‘best evidence’ rule) required the contents of a document be proved by tendering the original document.
      • Secondary evidence (eg, copies or oral evidence) were inadmissible to prove contents, subject to many exceptions (eg, where the absence of the original document was accounted for and excused).
      • This was a precaution against fraud and inaccuracy of reproductions.
    • This was criticised for being inflexible and inconsistent with modern technology and record-keeping practices.
  • UEL s 51 abolished the common law rules:
    • The common law has been replaced with a much more flexible approach: UEL pt 2.2.
    • Proof of contents can established through a range of methods (eg copies, transcripts and oral evidence): UEL s 48.
    • There are some safeguards, eg, the provisions for requests by one party to another, including to produce documents: UEL pt 4.6 div 1.
      • Failure to produce original documents when requested could in some circumstances prevent secondary evidence being admitted.
  • UEL s 48 — proof of contents of documents:
    • UEL s 48(1) — A party may adduce evidence of the contents of a document by tendering the document itself, or by:
      • adducing evidence of an admission made by another party to the proceeding as to the contents of the document,
      • tendering a document that is (or purports to be) a copy of the document that has been produced (or purports to have been produced) by a device that reproduces the contents of documents,
      • tendering a transcript (or purported transcript) where the document is an article or thing that reproduces the document in audio or encoded (inclding shorthand writing) form,
      • tendering a document that was (or purports to have been) produced by use of a device necessary to retrieve, produce or collate the document where the document is an article or thing that cannot be otherwise used by the court,
      • tendering a document that forms part of the records of or kept by a business (whether or not the business is still in existence) and is (or purports to be) a copy, extract or summary of the document in question (or a copy of such extract or summary),
      • tendering a document that is (or purports to be) a copy of a public document that is (or purports to have been) printed by:
        • a person authorised by or on behalf of the Government to print the document or by the Government Printer of the Commonwealth or by the government or official printer of another state or territory, or
        • the authority of the Government or administration of the State, the Commonwealth, another State, a Territory or a foreign country, or
        • authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House, or a committee of an Australian parliament.
    • UEL s 48(2) — These rules apply whether or not the document is available to the party.
    • UEL s 48(3) — If the party adduces evidence of an admission made by another party to the proceeding as to the contents of the document in question, the evidence may only be used in respect of:
      • the party’s case against the other party who made the admission concerned, or
      • the other party’s case against the party who adduced the evidence in that way.
    • UEL s 48(4) — A party may adduced evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding by tendering a document that is a copy of, or an extract from or summary of the document in question, or by adducing from a witness evidence of the contents of the document in question.
  • The legislation has considerable flexibility:
    • The methods provided for in UEL s 48(1) may be used regardless of whether the party has access to the original document or not: UEL s 48(2).
      • A photocopy can be relied upon simply because the original would be costly or time-consuming to produce.
        • A safeguard allows the other party to make a reasonable request for the original to be produced: UEL pt 4.6 div 1.
    • The legislation allows the contents to be proved by admission — a statement adverse to a party’s interests in the proceedings: UEL s 48(1)(a).
      • The UEL Dictionary defines ‘admission’ as a previous representation made by a person who is or becomes a party to the proceeding (including an accused) and which is adverse to their interest in the outcome of the proceedings.
      • It is presumed that people are unlikely to lie about matters against their own interests.

Copies and reproductions of documents

  • Parties may tender a copy of a document rather than produce the original, even where the original is available: UEL s 48(1)(b).
  • UEL s 48 recognises modern record-keeping practices such as where original documents are copied onto microfilm or scanned and stored electronically.
  • The copy must be produced by a device that reproduces the contents of documents — this excludes, for example, hand-written reproductions.
    • This would presumably include photocopies, microfilms, facsimile copies, scanned copies, etc.
    • It does not matter if the copy is not an exact duplication, as long as it is identical in all relevant respects: UEL s 47(2).
  • The section is premised on the general accuracy of modern reproduction techniques; the accuracy of such devices is presumed by UEL s 146 — no witnesses are needed to attest to the accuracy of the device used, but the presumption is rebuttable.
  • Transcripts of sound recordings and other coded material are allowed: UEL s 48(1)(c).
    • The common law forbade transcripts as anything other than a memory aid; it was not permitted as evidence itself.
      • The original document had to be played to the jury.
      • Transcripts could sometimes be permitted to assist the jury in understanding the recorded sounds: Butera v DPP (Vic) (1987) 164 CLR 180.
        • Applicant was appealing a conviction to the High Court.
        • The Crown had used recorded conversations as evidence.
        • The conversations were in various languages and the recordings muffled and indistinct in some parts.
        • Two interpreters had translated what they had heard.
        • Tapes were played to the jury, accompanied by the translations as evidence of the contents of the recordings.
        • The High Court held that the transcripts should not have been admitted as evidence, but merely as an aid to the jury’s understanding of the recordings.
    • Despite UEL s 48(1)(c), courts had taken the memory aid approach where the accuracy of the transcript is in doubt: see, eg, Eastman v The Queen [1997] FCA 548.
    • The combined effect of the legislation and common law was considered in Regina v Cassar [1999] NSWSC 436 (Sperling J):
      • A document that purports to be a transcript of recorded words is admissible to prove the conversation: UEL s 48(1)(c).
      • No oral or other evidence is necessary to verify the transcript; that it purports to be a transcript is sufficient: UEL s 48(1)(c).
      • Where the tape is indistinct, a transcript may be used to assist the jury in its understanding: Butera v DPP (Vic) (1987) 164 CLR 180, 187.
      • Where the tape is indistinct, a transcript made by an ‘ad hoc expert’ (a person qualified only by having listened to the tape many times) may be used for the purposes of aiding the jury, particularly where the tape needs to be played repeatedly to make out the words without assistance: Butera v DPP (Vic) (1987) 164 CLR 180, 188.
      • Transcripts should only be used as a memory aid if there is doubt or disagreement over accuracy; the jury is to give priority to what they hear if it is inconsistent with the transcript: Butera v DPP (Vic) (1987) 164 CLR 180, 188.
      • The jury may have the transcript in front of them while the tape is being played in court: Eastman v The Queen [1997] FCA 548.
      • A transcript may be rejected or its use limited: UEL ss 135–137.
    • Transcripts where the original recording is available and easily understood:
      • Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448, 472G–473E, 474B: transcripts of radio broadcasts should generally not be admitted into evidence where the recording is clearly understandable:
      • Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 290 (22 March 1999): Under UEL s 48(1)(c) transcripts could be admitted alongside a recorded document, but generally should not be if it would lead the jury into error, such as by changing the way they perceive the content of a broadcast.
        • Discretion can be exercised under UEL s 135 to exclude transcripts.
      • Vacik Distributors Pty Ltd v ABC (Unreported, New South Wales Supreme Court, Sperling J, 4 November 1999): The discretion to refuse admission of evidence under UEL s 135 arises if the probative value of the evidence is substantially outweighed by the danger that it would be unfairly prejudicial to a party, misleading or confusing, or cause or result undue inefficiency in the proceedings.
        • Where a recording is available and the transcript’s only use is as a memory aid, the transcript has no significant probative value.
        • Sperling J accepted that if there was any significant unfair prejudice to a defendant by admitting a transcript, that prejudice ‘would necessarily substantially outweigh the probative value of the evidence for the purposes of s 135’.
        • Admission of the transcript did not prejudice the defendant; an accurate transcript is an aid to assessing the effect of a broadcast rather than a distraction.
      • Griffith v ABC [2003] NSWSC 483: If the best evidence of the broadcast is before the jury, there is no fact in issue to which a transcript is relevant; in such circumstances a transcript is not relevant evidence under UEL s 55 or admissible under UEL s 56.
      • Nu-Tec v ABC [2010] NSWSC 711: The preferred approach is to exercise the UEL s 135 discretion to exclude a transcript on the basis that there is a danger that the availability of a written version would affect the jury’s assessment of the broadcast.

Documents produced by computers or other devices

  • Intangible information (eg, that contained in a hard drive, etc) can be proven by means of a printout or other document that is produced by the device: UEL s 48(1)(d).
  • UEL s 48(1)(d) includes information that can be ‘retrieved, produced or collated’ from a device.
    • ‘Retrieved’ and ‘collated’ connote material already in existence on the device (eg, documents saved to disk).
    • ‘Produced’ implies documents that are automatically generated by devices (eg, parking meter tickets, photographs from a speed detecting camera).
  • The reliability of such documents is presumed: UEL ss 146–147.
    • UEL s 147 applies to documents generated in the course of business.
  • These presumptions are rebuttable by adducing ‘sufficient evidence to raise doubt about’ the accuracy or reliability of the document.

Business records

  • A party may use copies, extracts or summaries of documents as long as they have been part of a business’ record: UEL s 48(1)(e).
    • This is a recognises that:
      • businesses generally keep copies of original documents as records, and
      • documents made in the ordinary course of business are likely to be reliable.
  • If it can be shown on the balance of probabilities (UEL s 142(1)) that a document was made in the ordinary course of business it will not be necessary to call the person who made the document to prove its contents.
  • ‘Business’ is defined broadly as including a profession, calling, occupation, trade or undertaking, government activity, parliamentary proceedings; it does not matter whether the business is in Australia or otherwise, and whether it is carried on for profit or not: UEL Dictionary.
  • ‘Business record’ suggests the recording of business activities rather than any document produced by a business.
  • There is a rebuttable presumption as to the reliability of documents produced by devices in the course of business — eg, it will be presumed that a photocopier used in the course of business will produce reliable copies: UEL s 147.

Public documents

  • Public documents (eg, certificates to title to land) may be proved by documents if printed by a ‘relevant authority’: UEL s 48(1)(f).

Unavailable documents

  • When a document is unavailable or where there are no issues about the document’s existence or contents, UEL s 48(4) may be used.
  • UEL Dictionary pt 2 cl 5 — unavailability of documents and things:
    • A document or thing is taken not to be available to a party if and only if:
      • it cannot be found after reasonable inquiry and search by the party, or
      • it was destroyed by the party or on the party’s behalf, otherwise than in bad faith, or was destroyed by another person, or
      • it would be impractical to produce it during the course of the proceeding, or
      • production of the document or thing during the proceeding could render the person liable to conviction for an offence, or
      • it is not in the possession or under the control of the party and:
        • it cannot be obtained by any judicial procedure of the court, or
        • it is in the possession or control of another party to the proceeding who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding, or
        • it was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding.
  • The party claiming unavailability must prove it on balance of probabilities: UEL s 142.
  • Contents of unavailable documents may be proved by copies, extracts, summaries or oral evidence from a witness about the contents.
  • A copy of a copy of a copy will still be a copy for the purposes of UEL s 48(4): Lewis v Nortex Pty Ltd (In Liq) [2002] NSWSC 337.
  • Apart from an oral admission under UEL s 48(1), the only time oral evidence can be used to prove the contents of a document is where the document is unavailable or the document or its contents are not in issue.
  • If Commissioner for Railways v Young were decided today:
    • The label of the jar would be considered documentary evidence under the UEL.
    • If the jar had been destroyed in good faith or could not be found, Mr Sheldon and Dr McDonald could, if the case were heard today, give oral evidence as to what was written on the label.

Voluminous and complex documents

  • Sometimes parties will rely on a large number of documents (eg, fraud cases with numerous transactions over a long period of time).
  • Previously every document had to be produced, possibly requiring hundreds of documents be tendered.
  • Such evidence can now be adduced in the form of a summary.
  • UEL s 50 — proof of voluminous or complex documents:
    • The court may grant an application made by a party and direct that the party may adduce evidence of the contents of two more more documents in the form of a summary if satisfied that it would not otherwise be possible conveniently to examined the evidence because of the volume or complexity of the document in question.
    • The court may only make such a direction if the party seeking to adduce evidence in the form of a summary has:
      • served each other party a copy of the summary that discloses the name and address of the person who prepared the summary, and
      • given each other party a reasonable opportunity to examine or copy the documents in question.
    • The opinion rule does not apply to evidence adduced in accordance with a direction under UEL s 50.
  • The courts have not agreed on what constitutes a summary.
  • The preferred view seems to take a broad approach, allowing that a summary need not summarise each of the documents but may instead be a summary of the evidence sought to be extracted from the documents: see, eg, Thackray v Gunns Plantations Ltd [2011] VSC 380; Re Idylic Solutions Pty Ltd; ASIC v Hobbs [2012] NSWSC 568.

Authentication of documents

  • Under the common law a document must be properly authenticated before it can be admitted into evidence; it must be shown to be what it purports to be (eg, a document purporting to be a diary of a particular person must be shown to be so, such as by showing that the signature on it is a true signature of the person, or that it is in their handwriting, or was found in a place where that person might have been expected to keep it).
    • The relevance of a document depends upon it being shown to be connected in the proceedings in some way (ie, that it was made by, adopted by, or otherwise connected to a person relevant to the proceedings).
      • This will usually be straightforward: a witness will give oral evidence that the document is authentic; though sometimes it can be more complicated.
    • If the accused, for example, refuses to authenticate a document, the prosecution must adduce evidence to show that the document is what they purport it to be.
  • Authentication is less strict under the legislation than at common law.
    • There are no specific rules requiring authentication.
    • Being simply a requirement of relevance, authentication is governed by UEL pt 3.2.
      • Where a question arises as to the relevance of a document, the court may examine the document and draw from it any reasonable inference as to authenticity or identity: UEL s 58.
      • Where the relevance of evidence depends on the court making another finding (including that the evidence is what it claims to be), the court may find the evidence is relevant if it is reasonably open to make that finding or subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding: UEL s 57.

Jopson, ‘Evidence for land claim a piece of art

Notes drawn from: Debra Jopson, ‘Evidence for land claim a piece of art’, The Sydney Morning Herald (Sydney), 16 February 1998.

  • A 10 x 8 metre canvas map of Western Australia’s Great Sandy Desert was painted by 70 artists, and made as evidence in support of their native title claim to the desert.
  • At a National Native Title Tribunal hearing in July [1997?] people from different parts of the desert stood on the part of the painting representing their country and explained how they were connected to it.
  • ‘It was used as a sort of prop. They had a standard Western map propped up against a Land Rover and had pieces of paper running from the map to the painting and people would walk across the paper. That unleashed a torrent. I have never seen anyone give such rich information about their country. Often when traditional people discuss their country they are very reticent and very shy about it. This opened them up and they talked about what it meant’: Fred Chaney, Deputy President of the National Native Title Tribunal.

Other evidence

  • ‘Real’ or ‘other’ evidence is evidence that is neither testimonial nor documentary.
  • Other evidence refers to things brought into court (eg, weapons, clothing) and to the examination of things (eg, land) that cannot be brought into the courtroom.
  • The common law term for this was a ‘view’; the UEL uses ‘view’ to refer collectively to things such as inspections, demonstrations, experiments and reconstructions.

Feld, Alexander and Bagaric, ‘Other Evidence’

Notes drawn from: Francine Feld, Theo Alexander and Mirko Bagaric, Uniform Evidence Law: Principles and Practice (CCH, 2nd ed, 2015) ch 4 [4.3]–[4.3.4].

  • UEL pt 2.3 deals with evidence that is neither testimonial nor documentary.
    • The legislation calls this ‘other evidence’; other terms may be used.
    • UEL pt 2.3 deals with the way such evidence may be adduced, not its admissibility.
  • The legislation 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: UEL s 52.
    • This provision preserves the common law in relation to non-verbal, non-documentary evidence, except evidence of views, demonstrations, experiments and inspections.

The nature of ‘other evidence’

  • In testimonial and documentary evidence, the trier of fact is receiving another person’s account of what happened.
  • By contrast, other evidence may be defined as evidence that the trier of fact perceives for themselves: Evans v The Queen [2007] HCA 59 [20] (Gummow and Hayne JJ).
  • The trier of fact may perceive the evidence directly in a number of ways:
    • Physical objects may be brought into court (eg, a murder weapon) — these are often called ‘exhibits’ and may be taken into the jury room for jury inspection once tendered.
      • Physical evidence may also be inspected in the courtroom (eg, animals, people).
      • The demeanour of witnesses may also be perceived directly.
    • Where the physical object is of a nature that prevents it being transported into court, the trier of fact can go to it (eg, the scene of a crime) — this is traditionally called a ‘view’.
  • Inspection of physical evidence and views allow the judge and jury direct access to the evidence itself.
  • Evidence can also be adduced by demonstration; this involves reproduction or reconstruction of the original event (eg, a witness might show how a fight took place by demonstrating the position of parts of the body):
    • These demonstrations may take place inside or outside the court as part of a view.
    • This allows closer access to the original event than an oral description.
  • Experiments involve the generation of ‘new’ evidence inside or outside court:
    • An expert might conduct an experiment to test the properties of particular things.
    • The results of the experiment could be used to draw an inference.
    • The ‘new’ evidence generate answers a particular question, the answer to which was not previously known.
    • Experiments allow direct access to the evidence if conducted in the presence of the trier of fact
    • In the United States case of OJ Simpson, the prosecution alleged that a glove that was claimed to be found at the scene belonged to Simpson; this was disproved by an experiment by the defence, who had Simpson try on the glove to see if it would fit.
      • This is an experiment rather than a demonstration, because the defence was not trying to reconstruct part of the crime but to answer a question relevant to the case.
  • DNA, ballistics and similar types of evidence are often talked about as if they were ‘real’ evidence due to being real phenomena:
    • In reality, these are ordinarily proved through oral or documentary evidence; they are rarely brought into the court of a jury to perceive them directly.
    • There is little point in bringing certain kinds of physical evidence into court, especially if the jury requires certain expertise to understand or interpret them.
    • Where the evidence is presented in oral or documentary form, it will not be ‘other evidence’.

Other evidence outside the courtroom

  • Views — demonstrations, experiments and inspections:
    • The UEL uses the term ‘view’ as a general term for demonstrations, experiments and inspections.
    • The UEL has significantly modified the common law:
      • UEL s 54 — views to be evidence:
        • The court, including a jury if there is one, may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.
      • Under the common law, whatever the judge or jury saw on a view (as distinct from a demonstration) could only be used as a memory aid, not as evidence.
        • A memory aid (‘aide memoire’) is not evidence itself, but merely a device for assisting the comprehension of admitted evidence: Butera v DPP (Vic) (1987) 164 CLR 180.
      • The rationale underpinning UEL s 54 is that distinguishing evidence from facts that assist in understanding the evidence is artificial and involves mental gymnastics probably beyond human capacity.
      • UEL s 53 — views:
        • A judge may order, on application, that a demonstration, experiment or inspection be held.
        • The judge may not make the order unless satisfied that:
          • the parties will be given a reasonable opportunity to be present, and
          • the judge and jury will be present.
        • Non-exhaustive list of matters that the judge must take into account:
          • Whether the parties will be present.
          • Whether the view will assist the court in resolving issues of fact or understanding the evidence.
          • The danger that the view might be unfairly prejudicial, misleading, confusing, or cause or result in undue inefficiency.
          • In the case of a demonstration — the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated.
          • In the case of an inspection — the extent to which the place or thing to be inspected has materially altered.
        • The court is not to conduct an experiment in the court of deliberations.
        • UEL s 53 does not apply to the inspection of an exhibit by the judge or jury.
    • The legislation does not define ‘demonstration’, ‘experiment’ or ‘inspection’.
      • The terms are understood to mean those that take place outside the courtroom in the presence of the judge or jury — Evans v The Queen [2007] HCA 59 (Heydon J):
        • The starting point in construing UEL s 53 must be the common law: [189].
        • At common law, a ‘view’ was an out of court examination of land or chattels too large to be taken into court and tendered as exhibits: [190].
        • The common law draws a distinction between views, demonstrations and reconstructions — [193]:
          • A view is an inspection of a scene or object without seeing it in operation or witnesses providing further explanation
          • A demonstration is a view incorporating an explanation by a witness of the incident in question or a demonstration of the thing in operation.
          • A reconstruction is an attempt to recreate in full or in part an incident with witnesses and testimony.
        • UEL s 53 incorporates the common law ‘view’ as an ‘inspection’, adds the other categories of ‘demonstration’ and ‘experiment’, and suggests a reconstruction would fall within the expression ‘demonstration’: [194].
        • The ALRC was seeking to overcome five problems — [216]:
          • The propriety of judges visiting scenes relevant to litigation without notice to the parties; this is met by UEL s 53(1)–(2).
          • Whether an out of court view could be ordered without the consent of the parties; this is also met by UEL s 53(1)–(2).
          • That guidance was needed on the factors relevant to making an order for out of court inspections, including appropriate experiments and demonstrations; this was met by UEL s 53(3).
          • What was seen outside the courtroom could only be used to assist understanding, not as evidence in its own right; this was met by UEL s 54.
          • The need for the jury to examine exhibits but to also prohibit jury experiments with exhibits; this was preserved by UEL s 53(5).
        • None of these problems related to conduct in the courtroom: [217].
        • No problems have arisen in relation to conduct in the courtroom comparable with the above problems, and that was not the focus of the ALRC: [217].
    • Example of a s 53 inspection — R v Milat (Unreported, Supreme Court of New South Wales, Hunt J, 12 April 1996):
      • During the course of the trial, the cour travelled to inspect the location where bodies had been found in the Belanglo State Forest.
      • The accused declined to be present during the inspection.
      • In applying UEL s 53, Hunt J held that the accused’s refusal to attend did not prevent the order that a view be held, because the accused had the opportunity to be present.
    • Issues arising where the accused is subject to security measures and presence at a view can run the risk of unfairly prejudicing the jury: Jamal v The Queen [2012] NSWCCA 198:
      • Appellant was convicted in respect of a drive-by shooting at a Sydney police station.
      • The appellant wished to be present at the view but would be wearing orange prison overalls and shackles, and be held in a cage in a corrective services vehicle, visibile by the jury on close viewing.
      • The trial judge noted that the accused would be represented by counsel at the view and determined it was not necessary for the accused to be present, ordering the view to be held in the accused’s absence.
      • On appeal, the NSW Court of Criminal Appeal found that this was in breach of the statutory requirement to provide the accused with a reasonable opportunity to be present under UEL s 53(2)(a).
      • Their Honours consider the breach a fundamental flaw in the trial process, making reference to longstanding authority that the accused should generally be present at every stage of a criminal trial: see, eg, Lawrence v The King [1933] AC 699, 708 (Lord Atkin).
    • In addition to the criteria of s 53(3) two further criteria should be satisfied before a view occurs — Hornsby Shire Council v Valuer General (NSW) [2013] NSWSC 1183 [7]–[8]:
      • There needs to be clear identification of what matters of fact a view will assist in resolving and the purpose and scope of the view; these should be identified in advance so that the parties have the opportunity in open court to make it clear what they content should be observed by the judicial officer when the view is undertaken.
      • There needs to be a clearly articulated protocol for how the view will be conducted, who will communicate what to the judicial officer and on what topic(s); unless these matters are clarified with precision in advance there is potential for the integrity of the proceedings to be compromised via innocent communications with the judge.
    • Whether a view will actually assist the court in understanding the evidence — NM Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 106:
      • The issue was whether agricultural chemical spray could have travelled from one property to another, and, if so, in what quantities.
      • The view would require the judge and counsel travelling by plane and then by car to Moree in Northern NSW.
      • The Court considered that the estimated cost of $45 000 and the late stage of the proceedings to be relevant.
      • The Court determined that the view was not warranted on the basis that it would amount to an undue waste of time:
        • It had not been demonstrated that the benefit that inspection might produce would warrant the delay of an extra day or the costs incurred.
        • An inspection would be unlikely to reveal anything that had not already been revealed through the extensive expert opinions already provided.
        • The assistance and understanding referred to in UEL s 53(3)(b) contemplates assistance going beyond that which almost any inspection might generally be expected to provide.
    • Where the site of a view has significantly changed — Chotiputhsilpa v Waterhouse (2005) 44 MVR 456 (New South Wales Court of Appeal):
      • Application for a view was refused on the basis that the site to be inspected had significantly changed: UEL s 53(3)(e).
      • The issue was whether signage indicating a pedestrian crossing under the Anzac Bridge was adequate; the plaintiff had been struck by a car while attempting to cross.
      • The parties had agreed, and there was evidence, that the site had changed radically since the time of the accident.
      • As the layout of the site had changed so substantially a view would serve no purpose, and would likely be prejudicial to one or other of the parties.
      • The evidence already admitted was sufficient to understand the layout.
  • Experiments made out of court not in the presence of judge or jury:
    • UEL s 53 does not apply to inspections, experiments or reconstructions that are conducted outside the court and not in the presence of the judge or jury (eg, an experiment conducted by an expert before coming to court).
    • Nevertheless, the principles in UEL s 53 can provide guidance with respect to the admissibility of such evidence — in particular, the circumstances of the experiment must be similar to those at the time of the event in issue: DPP (Vic) v Farquharson (No 2) (Ruling No 4) [2010] VSC 210.
  • Experiments in the jury room:
    • The court, including the jury, is prohibited from conducting experiments in the course of deliberations: UEL s 53(4).
    • The legislation is a restatement of the common law — Kozul v The Queen [1981] HCA 19:
      • The case concerned the ways in which a jury may use real evidence (in Kozul, a gun) once tendered as evidence.
      • The jury room is considered ‘out of court’ as it is not part of an open court.
      • The principle that emerged is that appropriate testing of evidence is to be distinguished from the generation of new evidence.
        • This is consistent with the fundamental principle in an adversarial trial that only parties investigate and present evidence.
      • Gibbs CJ (Mason J agreeing):
        • The critical issue contested at the trial, and as pointed out by the Court of Criminal Appeal, was whether the firearm involved in the trial had been discharged deliberately or whether it had gone off accidentally during the struggle.
        • The applicant submitted that in relation to this issue the trial judge had misdirected the jury.
        • The detailed instructions of the trial judge invited the jury to test the evidence.
        • Counsel for the applicant submitted that it was incorrect to invite the jury to conduct an experiment, the object of which was to discover whether the finger of a person holding a revolver will clench when a blow is struck to the hand.
          • It was submitted that this would be objectionable because:
            • it would be conducted in the absence of the applicant, who would be prevented from revealing any weaknesses in the manner in which it was carried out, and
            • it would proceed on a false basis given the person holding the weapon would not be in the same state of emotional stress and would anticipate the blow.
        • The jury is entitled to examine and have regard to the weapon as it was an exhibit in the case and as much part of the evidence as the oral testimony.
        • The jury may, if necessary, touch and handle exhibits, and may engage is a limited amount of simple experimentation with them; examples:
          • If the question was whether a piece of paper in the possession of the accused had been torn from a letter found at the scene of the crime, the jury might fit the two pieces together.
          • In determining whether one container held less than another, the jury might pour water from one to the other.
          • If weight was in issue, the members of the jury might lift an object.
        • It is perfectly proper for the members of the jury to pull the trigger of the revolver, cocked and uncocked, to judge for themselves how much pressure was necessary to cause it to discharge; the jury are doing no more than using their own senses to assess the weight and value of the evidence.
        • When the experiments conducted by the jury go beyond mere examination and testing of the evidence, and become a means of supplying new evidence, they become impermissible: citing Hodge v Williams (1947) 47 SR (NSW) 493.
        • If the judge invited the jury to do no more than test the mechanical properties of the weapon the direction would be proper; however the applicant argued that the invitation went further and invited the jury to conduct an experiment.
        • It was proper for the jury to determine the sensitivity of the weapon to see how much pressure was required and how likely accidental discharge was.
        • The trial judge fell into error by suggesting that the jury should conduct an experiment; it would have gone beyond an examination and evaluation and would have had the purpose of gathering additional evidence.
          • There had been, however, no miscarriage of justice and special leave to appeal was not warranted.
      • Wilson J found that the trial judge’s error cause a miscarriage of justice.
      • Stephen J (Murphy J agreeing):
        • It was proper for the jury to have the revolver with them in the juryroom.
          • For the past two hundred years all exhibits have gone with the jury into the juryroom when the jury considers its verdict: citing R v Bradshaw (1978) 18 SASR 83, 93–94.
        • The jury can properly be directed by the judge to examine and handle the weapon, so as to better understand the evidence (expert or otherwise) heard during the trial; perception of real evidence is not limited to sight, but touch may be used to ascertain sharpness or weight: citing G D Nokes, ‘Real Evidence’ (1949) 65 Law Quarterly Review 57, 64.
        • It was proper for the trial judge to tell the jury that they might experience for themselves trigger pressures of twelve and four pounds by pressing the trigger.
        • It is wrong to regard the trial judge’s directions as an invitation to the jury to create new evidence in the juryoom; it is a proper direction calculated to assist the jury in its task of evaluating the evidence presented.
        • In the circumstances of the case (determining whether a blow could cause accidental discharge of the firearm) it is permissible and prudent to tell the jury to handle the revolver, experience the respective trigger pressures and the sensation of a blow to the hand holding the revolver.
        • Without such experience the jury would largely be left to decide the matter by mere speculation; with it they could apply common sense and common experience.
        • The explicit warning that no accurate re-enactment was possible provided a necessary safeguard.
        • Juries must be free to use the qualities of judgment and common sense that they bring into the juryroom, but must not substitute what they suppose to be their own special knowledge in place of expert evidence given in court.
        • The jury is, however, free to inspect and experiment with exhibits that are sent into the jury room with them in any reasonable manner that occurs to them: citing R v Hamitov (1979) 21 SASR 596, 598.
        • Where the jury has expert evidence it must not substitute its own inexpert view; when there is no expert evidence the jury must be instructed not to attempt a task requiring expert skills: citing R v O’Sullivan (1969) 1 WLR 497; (1969) 2 All ER 237.
        • The judge had warned the jury of this, and this case could be distinguished because the jury was merely experiencing the sensation of holding the revolver and receiving a blow to the hand.
    • The same principles arose in R v Skaf [2004] NSWCCA 37:
      • Appeal for conviction of sexual assault.
      • After trial it became known that two jurors had visited the scene of the assault during deliberations in order to view the lighting arrangements.
      • The appeal to the NSW Court of Criminal Appeal was successful on the ground of juror misconduct.
      • The purpose of the inspection and experiment of the lighting was to determine how clearly a person could be recognised at close quarters at night; this was relevant to determining the identity of the assailants.
      • The CCA felt it was unproductive to consider whether it was an experiment and an inspection, though thought it was both.
      • An experiment would have been a direct contravention of UEL s 53(4).
      • The incident was characterised as at least some of the jury having regard to information that was not evidence in the trial or otherwise properly put before them by the judge to the knowledge of the parties.
      • The information obtained was not evidence and was obtained in circumstances amounting to a want of procedural fairness (denial of natural justice) in that the accused were unable to test the material, comment upon it or call evidence to rebut or qualify it.
      • The Court needs to weigh the possible prejudicial impact of this extrinsic information upon the minds and deliberations of (at least) the two jurors directly involved.
      • The introductory direction contained in [1–510] of the Criminal Trial Courts Bench Book (Judicial Commission of NSW) directs jurors:
        • to place out of their minds any publicity regarding the case,
        • to decide the case solely by reference to the evidence presented in open court and to the directions of law given by the trial judge,
        • not to use any material or research tools (eg, the Internet) to access legal databases, earlier decisions or any other matter relating to the trial,
        • not to bring computers or mobile phones into the jury room,
        • not to discuss the case with anyone other than fellow jurors, and to do that in the privacy of the jury room,
        • to avoid speaking to any person in the precincts of the court (except, presumably, the Sheriff’s Officers and fellow jurors), and
        • to direct any query about the evidence or procedure solely to the trial judge, via a note given to the Sheriff’s Officer.
      • These directions are adequate so far as they go, but can be improved by adding a short explanations:
        • the prohibition on undertaking further research also avoids the risk that a juror will be influenced by legal principles not applicable to NSW, or some commentary or statement that is inaccurate, and
        • the prohibition on discussing the case with outsiders is that such persons will wish to make a contribution or observation, which is of no value since they will not have seen o hear the evidence, or received directions, or be subject to the oath or affirmation to which jurors are subject.
      • It is useful to add further instructions:
        • Jurors should not make a private visit to the scene of the alleged offence.
        • Jurors should not attempt private experiments concerning any aspect of the case.
        • Views and experiments are permitted only if they occur in the presence of all jurors, the legal representatives of the parties, and the judge.
        • Views and experiments must only take place in circumstances where safeguards are taken to replicate the conditions existing at the time of the relevant events and differences in conditions can be pointed out to the jury in the course of the evidence.
        • The prohibition on jurors making their own inquiries extends to prohibiting them from causing or requesting anyone else from making such inquiries.
        • If a juror becomes aware that a fellow juror has made some independent inquiry, this should be brought immediately to the attention of the presiding judge.
        • Similarly, if it becomes apparent to any juror that a matter not in evidence has found its way into the jury room, this should be brought to the judge’s attention.
    • It is an offence in NSW and Victoria for a juror to conduct enquiries about matters relevant to the trial: Jury Act 1977 (NSW) s 68C (penalty: two years imprisonment or 50 penalty units, or both); Juries Act 2000 (Vic) s 78A (penalty: 120 penalty units).

Other evidence in the courtroom

  • UEL s 52 preserves the common law with respect to all other evidence other than that which is the subject of UEL s 53.
  • UEL s 53 does not apply to in-court demonstrations, experiments and inspections.
  • Consequently, the common law governs all in-court ‘other evidence’.
  • In-court demonstrations:
    • Example — Matthews v SPI Electricity Pty Ltd (Ruling No 34) [2014] VSC 40:
      • The plaintiff sought to use in court a scale model of a power pole to assist the Court in understanding the evidence of expert witnesses.
      • His Honour held that the model could only be used as an aid to provide a reference point for what the experts were speaking about when giving concurrent evidence.
      • The parties were not permitted to use the model to conduct any form of test or experiment, and could not rely on the model as an evidentiary base.
  • Physical evidence:
    • There are no rules governing the mode of proof for physical items brought into the courtroom.
    • The admissibility will depend on the party producing the evidence to show they are relevant to a fact in issue.
      • This usually involves calling a witness to demonstrate the item’s relevance (eg, showing that the item was found at a murder scene).
      • The requirement of relevance will limit the type of physical evidence that may be tendered.

Feld, Hemming and Anthony, ‘A verdict “according to the evidence”’

Notes drawn from: Francine Feld, Andrew Hemming and Thalia Anthony, Criminal Procedure in Australia (LexisNexis, 2014) [7.60]–[7.77].

  • The role of the jury is to:
    • determine the facts in accordance with the evidence, and
    • apply relevant principles of law to those facts when coming to a verdict.
  • Overview of jury’s obligations — Black v R (1993) 179 CLR 44:
    • The jury must give a true verdict according to the evidence.
    • The obligation is to be fulfilled to the best of each juror’s ability.
    • Each juror takes their individual experience and wisdom into the jury room.
    • The jury is expected to judge the evidence fairly and impartially.
    • Jurors must listen carefully and objectively to the views of their fellow jurors.
    • Jurors should calmly weigh up each other’s opinions about the evidence.
    • Opinions should be tested by discussion.
  • It is vital to the adversarial system that the jury takes into account only the evidence that has been presented by the parties.
  • Jurors today are passive (unlike in the 18th century) and non-investigative.
    • A juror may ask a question to the trial judge via the sheriff’s officer.
    • Questions will typically concern:
      • an aspect of the evidence,
      • a procedural aspect of the trial, or
      • clarification of an item of evidence given in the trial.
    • The court can put controls on the kind of information jurors seek in court.
      • It is difficult to control jury investigations within and outside the jury room.

Evidence in the jury room

  • The jury is not to go looking through exhibits for evidence that has not been brought out in the courtroom; nor are they to take into account any such evidence they may find: R v Allan (2002) 133 A Crim R 444 (NSW Court of Criminal Appeal).
  • Jurors may only take into account evidence presented by the parties and must not speculate on any additional matters they might find: R v Landsell (Unreported, New South Wales Court of Criminal Appeal, 22 May 1995).
  • The traditional approach to jury experimentation with or inspection of exhibits follows the principles in Butera v DPP (Vic) (1987) 164 CLR 180 that this can only be an aid to understanding or explaining evidence.
    • Only the parties have the right to determine what evidence goes before the court.
    • The judge and jury cannot generate evidence in a manner that excludes party control.
  • It is impermissible for the judge or jury to gather by extraneous evidence or experiments of their own anything in the nature of additional evidence and use it to determine the issue, unless the facts obtained are ventilated and submitted to the comment of the parties: Hodge v Williams (1947) 47 SR (NSW) 489 (Davidson J), quoted in Kozul v The Queen (1981) 34 ALR 429 (Gibbs CJ).
  • Jury discovery of attribute of exhibit — Barker v The Queen [2002] WASCA 127:
    • Wallwork J:
      • The defence counsel told the jury that there were no fibres on a piece of tape.
      • The jury noticed a blue fibre on the piece of tape.
      • The forensic report had not tested for fibres.
      • The jury asked whether they were to take the fibre the jurors had found on the tape into account; the trial judge advised to make of it what they will, in essence yes.
      • The answer to the question put was agreed with by the prosecution and defence.
      • The trial judge declined to give any additional warnings to the jury.
      • Every opportunity had been given for defence to make further objection.
      • The defence did not make objection nor apply for an adjournment.
      • The instruction of the judge in the case was overall proper and favourable.
    • Anderson J:
      • Neither counsel nor the trial judge called to inspect the exhibit.
      • There seems to have been simply acceptance of the jury’s observations.
      • It can be assumed the defence deliberately declined an adjournment for testing.
      • Counsel for the appellant argued that the jury should have been discharged.
      • The jury was entitled to examine the exhibit and arrive at relevant conclusions.
      • The trial judge’s direction was accepted by prosecution and defence counsel.
    • The appeal was dismissed.
    • Leave to appeal to the High Court was refused; McHugh J observed that the trial judge’s approach was in accordance with Kozul v The Queen: Barker v The Queen [2003] HCATrans 440.

Evidence outside the jury room

  • A true verdict according to the evidence means that jurors must not independently search for facts: see, eg, R v Skaf (2004) 60 NSWLR 86; R v K (2003) 59 NSWLR 431.
    • In those cases they became investigators rather than triers of fact.
  • The sanctity of the jury room and the secrecy of jury deliberations are necessary to ensure that jurors are not subject to pressure or harassment: R v Skaf (2004) 60 NSWLR 86; R v K (2003) 59 NSWLR 431.
  • Jury conducted Internet searches about the defendant — R v K (2003) 59 NSWLR 431:
    • Appellant was indicted for murder of his first wife; he was appealing conviction.
    • Appellant had been acquitted previously of the murder of his second wife.
    • The trial judge instructed the jury to ignore any publicity with regard to the previous murder trial (of the first wife) and to take into consideration only the evidence that had been presented to the jurors by the party.
    • Following the trial, some members of the jury disclosed to the defence counsel that some jurors had conducted Internet searches and found information about the previous proceedings (regarding the second wife), including the reason why this was a retrial.
    • The jurors were already aware that a retrial had been ordered, but were instructed to ignore that fact and concentrate on the evidence being presented.
    • As a result of the disclosure, the sheriff obtained affidavits from nine of the twelve jurors confirming that Internet searches were conducted:
      • The first issue was whether affidavits could be received by the court; this was answered in the affirmative as the searches were external to jury deliberations.
      • Evidence concerning discussions between jurors and the effect of the Internet searches on their deliberations could not be admitted on the basis of public policy considerations and the established rule that courts will not hear such evidence.
    • It was held that the court could not be satisfied that the irregularity had not affected the verdict:
      • This was in accordance with the Marsland test that the ‘question we must ask ourselves is whether we can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred’: R v Marsland (Unreported, NSW Court of Criminal Appeal, 17 July 1991), applied in:
        • R v Rudkowsky (Unreported, NSW Court of Criminal Appeal, 15 December 1992).
        • R v HJS [2000] NSWCCA 205.
        • R v Allan [2002] 133 A Crim R 44.
        • R v Lansdell (Unreported, NSW Court of Criminal Appeal, 22 May 1995).
      • The court was unable to determine the nature of the information received.
    • The conviction was quashed and a new trial ordered.
    • Wood CJ at CL:
  • The House of Lords rejected the notion that it would have been appropriate for a trial judge to question members of the jury about the contents of a letter sent by one juror concerning improper juror behaviour during deliberations (coercion, intimidation, speculation and consideration of irrelevant matters): R v Smith [2005] UKHL 12.
    • The trial judge, with whom counsel agreed, covered most points at issue in the letter, but failed to remind the jury to follow his directions on the law and to refrain from bargaining over verdicts, thus justifying the appeal.
  • The Tasmanian Court of Criminal Appeal ruled that irregularities had been corrected by a direction of the trial judge to disregard information obtained from a site visit and telephone inquiry to the Weather Bureau (to determine the time of sunset in February): Farrell v The Queen (Unreported, Tasmanian Court of Criminal Appeal, 7 June 1996).
    • A similar outcome occurred in R v Myles (1995) 83 A Crim R 519 (Queensland Court of Appeal):
      • A jury foreman made telephone inquiries regarding background information which tested aspects of the defence case (eg, the price differential between meat in Mackay and Cairns, and the best way to transport refrigerated foods in Queensland).
      • Some jurors investigated a site relevant to the crime and determined (incorrectly) that the accused had not acted openly when loading a truck on which prohibited drugs were subsequently discovered.
      • The Court refused to consider the information relating to the telephone inquiries and determined that the information regarding the site visit did not justify granting an appeal.
    • This was also similar to the outcome in Domican v The Queen (No 3) (1990) 46 A Crim R 428 (NSW Court of Criminal Appeal):
      • A sheriff’s officer seized a folder containing six photographs of scenes discussed but not produced in the evidence from the jury room.
      • The photos were innocuous and the trial judge ordered their return without comment, making no reference to them when directing the jury.
      • Kirby ACJ (Campbell and Studdert JJ agreeing) said that it would have been preferable for the photographs to have been withdrawn from the jury room and for the trial judge to have given a specific instruction that the photographs were to be ignored.
      • However, the absence of these steps did not justify, in the circumstances, a quashing of the verdict.
  • Jury used ouija board in deliberations — R v Young [1995] QB 324:
    • Accused was convicted of two counts of murder.
    • A juror contacted the defence after the conviction, revealing that four jurors had used a ouija board to contact the spirits of the murder victims.
    • Affidavits from all jurors and two bailiffs confirmed this had happened.
    • The affidavits were put before the court.
    • The Court of Appeal held that a breach of jury secrecy was warranted in the circumstances, given the allegation was quite serious.
    • The appeal was allowed on this basis (though Young was subsequently retried and convicted).
  • A judge may not direct a jury to find an accused guilty; the jury may acquit regardless of the evidence against an accused: R v Wang [2005] UKHL 9.
    • This can be seen in practice:
      • A judge ruled the accused had no defence yet a jury found the accused not guilty of cultivating cannabis for supply to his terminally-ill wife: R v Blythe (The Independent, UK, April 1998).
      • The jury acquitted the accused of revealing documents showing that the government had lied about the sinking of a ship in the Falklands War, despite the judge directing that the conduct amounted to an offence: R v Ponting [1985] Crim LR 318.

Adverse pre-trial publicity

  • The potential prejudice that can be caused by pre-trial publicity can be so extreme as to warrant a permanent stay of proceedings: Tuckiar v The King (1935) 52 CLR 335.
  • Despite an increase in availability of information (eg, through social media), there has not been a corresponding increase in stays of proceedings.
  • To reduce or negate the effect of pre-trial publicity, proceedings may delayed, the venue or jury directions changed, or, if permissible, a judge-only trial: see generally R v Glennon (1992) 173 CLR 592; R v Sheikh [2004] NSWCCA 38; Skaf v The Queen [2008] NSWCCA 303; R v Jamal (2008) 72 NSLR 258; Dupas v The Queen (2010) 241 CLR 237.
  • Example of handling of adverse pre-trial publicity — R v Abrahams [2013] NSWSC 729:
    • Accused and her partner were charged with the murder of her daughter.
    • The disappearance of the child and discovery of her remains received enormous media attention.
    • The publicity included the dissemination of material on Facebook and on discussion forums.
    • The trial judge acknowledged the vast quantity of ‘highly derogatory’ material published online, but refused the application for a judge-only trial.
    • Harrison J cited observations in R v Glennon (1992) 173 CLR 592, 603 (Mason CJ and Toohey J) that:
      • The possibility of a juror acquiring irrelevant and prejudicial information is inherent in a criminal trial.
      • Regardless, the law acknowledges this and proceeds on the presumption that a properly instructed jury will render a true verdict.
      • In the past too little weight has been given to the capacity of jurors to assess critically the evidence presented: citing Hinch (1987) 164 CLR 74.
    • An important consideration for Harrison J in refusing a judge-only trial was that the trial would involve a question of community standards for which the jury was a superior trier of fact.
  • It is misleading to think that because a juror has heard something of the circumstances giving rise to the trial the accused has lost the opportunity of an indifferent jury: Murphy The Queen (1989) 167 CLR 94, 99. See also R v Von Einem (1990) 55 SASR 199, 211.
  • ‘In the era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not ake partial a juror sworn to render a true verdict according to the evidence’: R v Hubbert (1975) 29 CCC (2d) 279, 291, quoted in Murphy v The Queen (1989) 167 CLR 94, 99.
  • In a NSW study, jurors reported that they had adhered to trial judges’ instructions and resisted the impact of prejudicial publicity in high-profile criminal trials, more so than generally estimated by lawyers: M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law & Justice Foundation of New South Wales, 2001).
    • Jurors acknowledged memory of media reporting of the commission of an offence, but indicated they were less likely to recall media reports of the arrest, committal hearing or pre-trial processes.
    • It was common for some jurors to follow newspaper covergage of the trial in which they were sitting during its progress.