Evidence: documentary evidence

These notes are 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].

  • Under the UEL, ‘document’ is defined broadly to include any record of information regardless of medium, such as 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 UEL ch 2 pt 2.2.
  • The legislation governs the methods by which documents may be presented as evidence.
    • Admissibility of contents is a separate issue.

Definition of ‘document’

  • The UEL Dictionary defines document as any record of information, including:
    • anything on which there is writing;
    • anything on which there are marks, figures symbols or perforations having a meaning for persons qualified to interpret them;
    • 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 phones: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264.
    • Computer databases: Automotive Dealer Administration Services Pty Ltd v Kulik [2010] VSC 293.
    • Hard disks: 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 excludes purely decorative symbols that have no meaning (or contain no information) — these would be ‘other evidence’.
  • A video recording (such as 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 (such as oral evidence): Wade 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 (such as that 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 (such as that 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 to be proved by tendering the original document.
      • Secondary evidence (such as copies or oral evidence) were inadmissible to prove contents, subject to many exceptions (such as 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 (such as copies, transcripts and oral evidence): UEL s 48.
    • There are some safeguards, such as where 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 deals with proof of contents of documents:
    • Under 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 (including 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;
        • the authority of the Government or administration of the State, the Commonwealth, another State, a Territory or a foreign country; or
        • the authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House, or a committee of an Australian parliament.
  • Under UEL s 48(2), these rules apply whether or not the document is available to the party.
  • Under 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.
  • Under UEL s 48(4), a party may adduce 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
    • 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 if 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: 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 presumably includes 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.
        • The 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 have 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 R 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 recording 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:
      • Transcripts of radio broadcasts should generally not be admitted into evidence where the recording is clearly understandable: Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448, 472G–473E, 474B.
      • 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: Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 290 (22 March 1999).
        • Discretion can be exercised under UEL s 135 to exclude transcripts.
      • 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: Vacik Distributors Pty Ltd v ABC (Unreported, New South Wales Supreme Court, Sperling J, 4 November 1999).
        • 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.
      • 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: Griffith v ABC [2003] NSWSC 483.
      • 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: Nu-Tec v ABC [2010] NSWSC 711.

Documents produced by computers or other devices

  • Intangible information (such as that contained in a hard drive) 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 (such as documents saved to disk).
    • ‘Produced’ implies documents that are automatically generated by devices (such as parking meter tickets and 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 recognition 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 — for example, it will be presumed that a photocopier used in the course of business will produce reliable copies: UEL s 147.

Public documents

  • Public documents (such as 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.
  • Under UEL Dictionary pt 2 cl 5, 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;
      • 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 (NSW) v Young (1962) 106 CLR 535 was decided today:
    • the label of the jar would be considered documentary evidence under the UEL; and
    • 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 (such as 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.
    • Under UEL s 50, 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 Idyllic 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.
    • For example: 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 (that is, that it was made by, adopted by, or otherwise connected to a person relevant to the proceedings).
    • This will usually be straightforward because 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 claim 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.