Evidence: forms of evidence

Overview of the Uniform Evidence Law (‘UEL’)

  • The Uniform Evidence Law has been adopted by several Australian jurisdictions:
    • Commonwealth: Evidence Act 1995 (Cth).
    • New South Wales: Evidence Act 1995 (NSW).
  • There are three main forms of evidence:
    • testimonial;
    • documentary; and
    • other evidence.

Testimonial evidence

  • Testimonial evidence is also known as:
    • oral evidence;
    • verbal evidence; and
    • witness evidence.
  • The rules of testimonial evidence are set out in UEL pt 2.1.
  • The rules concern:
    • who can give evidence;
    • how evidence may be given; and
    • how witnesses may be questioned.

Documentary evidence

  • Documentary evidence is ‘any record of information’.
  • The rules of documentary evidence are set out in UEL pt 2.2.
    • Additional relevant provisions are contained in the UEL Dictionary.
  • The rules concern:
    • what constitutes documentary evidence; and
    • how documents may be used in court.

Other evidence

  • Other evidence is any evidence that is neither testimonial evidence nor documentary evidence.
  • Other evidence may also be known as:
    • real evidence; or
    • demonstrative evidence.
  • The distinguishing feature of other evidence is that the jury can perceive it directly.
  • Other evidence includes:
    • physical evidence (such as weapons and blood);
    • the demeanour of witnesses; and
    • views (experiments, demonstrations and inspections).
  • The rules of other evidence are found in UEL pt 2.2 and the common law.
  • The rules govern:
    • the presentation of other evidence;
    • how other evidence may be handled by the jury; and
    • what inferences may be drawn from other evidence.

Examples of different types of evidence drawn from State of Florida v Zimmerman (Fla 18th Jud Cir, Crim No 592012CF001083A, 13 July 2013)

  • The victim’s mother was called as a witness to give her opinion on the identity of a person heard screaming for help in a recording.
  • The evidence presented was:
    • testimonial (the witness gave evidence directly); and
    • documentary (the recording).
  • The sounds (cries for help) were not ‘other evidence’ because they were a reproduction from a tape, and were therefore documentary evidence.
  • The distinction between forms of evidence can be difficult to appreciate, such as in the case of fingerprints.