LAWS13010 - Evidence and Proof

Topic 3: Methods of Proof

1.0 ObjectivesAt the end of Topic 3, you should be able to:

● Distinguish between testimony, documentary evidence and real evidence;

● Explain the concepts of competence and compellability as they relate to witnesses;

● Distinguish between testimony which reflects observations, testimony which reflects opinion, and testimony which reflects the observations of third parties;

● Identify the different forms in which “documentary” evidence might be obtained;

● Explain the need for documentary evidence to be authenticated;

● Identify different types of real evidence, and other similar practices suchas “views”; and

● Identify other forms of proof which are not strictly evidence, such as Judicial Notice and formal admissions.

2.0 Introduction

Whenever we discuss evidence, it is important to remember that evidence law is not important for its own purposes. Evidence law’s only real usefulness is that it allows us to represent our clients in disputes which focus on other areas of law.

As we have stated in previous weeks, the purpose of evidence law - the only purpose of evidence law - is to convince the finder-of-fact, whether judge or jury, that our version of the facts is accurate. We do this in the expectation that once the law is applied to our facts, we will achieve the best possible outcome in the case.

So, let us say we have a particular fact which we wish to prove - that Sarah wore a red jacket on the night of an offence. Our opponents insist she was wearing a blue

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jacket - and for some reason the colour of her jacket is important in the context of the case. There are a number of ways we could prove that her jacket was red:

● We might call Sarah to give evidence, and ask her what colour her jacket was;

● We might call one of Sarah’s friends or companions from the night, and ask them about her jacket colour;

● If a photograph happened to be taken on the night in question, and we could prove that it was taken that night, we might seek to admit the photograph;

● If, the next day, one of Sarah’s friends sent her a Facebook email in which she stated “Hey, that red jacket of yours last night looked great!” we might seek to admit the email;

● To make the point that Sarah owns a red jacket, we might seek to have the jacket itself produced to the court.

Which of these would be the best method? do we need to follow up on all of them? Which would be most persuasive, and which have the most risks?

The purpose of this week is to look, from an overview perspective, at the various types of evidence and the way each might contribute to our efforts to prove a point in court. We will consider the strengths and weakness of each - and then in the next three weeks, we will delve in much more detail into each form of evidence.

3.0 Prescribed Reading

● David Field, Queensland Evidence Law (2nd ed, 2011):

Chapter 3 (Types of Evidence); and

Chapter 2, pp 50-56 (Judicial Notice and FormalAdmissions)

4.0 Reference Reading

Secondary Material

● Wendy Harris, ‘Spousal Competence and Compellability in Criminal Trials in the 21st Century’ (2003) 3:2 QUT Law Journal 274.

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● Pelma Rajapakse, (1998) ‘An Analysis of the Methods of Proof in Direct Discrimination Cases in Australia’ (1998) 20:1 University of Queensland Law Journal 90.

Cases

ex parte Fernandez (1861) 142 ER 349: Fernandez refused to answer questions, claiming a privilege, but also refused to explain the basis for his refusal. It was argued that it was for the witness to assess whether a privilege existed. See, especially, Willes J on page 364. http://www.commonlii.org/int/cases/EngR/1861/556.pdf

Ogden v Illinois (1890) 25 NE 755 (Illinois): Defendant was convicted of robbery, and was identified by the wife of his victim, on the basis of his voice. Held that as hearing was one of the five senses, she was entitled to identify him in that way.

R v Hill (1851) 169 ER 495: Hill was an inmate in a mental health facility but was still capable of giving an oath and understanding his duty to tell the truth, so he was a competent witness.http://www.commonlii.org/uk/cases/EngR/1851/50.pdf

5.0 Key Terms

Compellability: A person is compellable if they may be compulsorily instructed to appear before the court and give evidence.

Competence: For the purposes of evidence law, a witness is competent to give evidence if they are capable of understanding the nature of their oath, and if they are capable of understanding their obligation to tell the truth.

Document: Any item or medium upon which information may be stored, so that the information may later be retrieved.

Exhibit: Any physical item which is placed before the court so that the court can learn about the item’s own physical properties.

Hearsay: Testimony evidence which, instead of explaining what the witness themselves observed, explains what another person observed and then related.

Observation: Information obtained by a witness through the use of their own five senses.

Opinion: A conclusion or inference which is made after applying an interpretation to an observation.

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Privilege: A privilege may entitle a witness to withhold from the court, evidence they are capable of giving. For instance, there is a privilege against self-incrimination.

Sworn evidence: Testimony given by a person who is competent to relate the things they have observed, and who understands the nature of their oath and their obligation to tell the truth.

Unsworn evidence: Testimony given by a person who is competent to relate the things they have observed, but who is not competent to give a witness’ oath.

View: An excursion by the court to see a landscape or item which cannot be, or cannot conveniently be, brought to the court itself.

Viva voce: With the living voice. Refers to interview-style communications, where one person asks questions and the other person supplies answers. May be contrasted with monologue and dialogue.

2.0 Methodical proof

In topic one, we began to consider the burden of proof, the standards of proof, and the ways in which advocates might attack one another’s evidence. Students were also introduced to the concept of formal logic and the syllogism. It is now time to bring all of that together, to consider how as lawyers we might prepare the evidence for a case.

Step 1: What must I prove, and to what standard?

This is the point at which formal logic will play its role. If you have carefully considered the flow of your arguments, then you should be able to see that each premise relies on specific facts. If you want the court to believe those facts, then you must provide evidence of them. Consider the following syllogism:

1. The perpetrator was seen running from the crime;

2. My client had a torn Achilles’ tendon at the time

3. Anyone with a torn Achilles tendon cannot run;

SO My client was not the perpetrator.

In this case, it is likely that the prosecution will have already led evidence that the perpetrator was seen running from the scene of the crime; what we will have to prove, in order to make our point, is that our client had a torn tendon; it may also be necessary to prove that a person with a torn tendon is unable to run (although common sense, or judicial notice, might be enough to rely on here).

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So, let us assume we must prove our client had a torn tendon. To what standard must we prove it? In this case, we are raising a defence, so we will have to meet the evidential standard of proof - providing a modicum of evidence. The bar is not high.

Step 2: What information is available to prove that fact?

Obviously one option would be to have the defendant testify as to the condition of their ankle. This would of course carry risks, as the prosecution could cross-examine the defendant.

Another option might be to call the defendant’s doctor to give evidence of his condition. Other options might be available - perhaps the defendant emailed his football coach to advise he would be unable to train as he had torn his achilles tendon. At this stage, you should consider any potentially relevant evidence.

Step 3: Is the information direct or indirect?

Direct evidence does not require any assessment or interpretation in order to prove the point. In this case, if the doctor appeared in court and stated “I examined the patient and found him to have a torn achilles tendon” that would be sound direct evidence.

Indirect evidence does rely on some form of interpretation. In this case, the email to the football coach is indirect evidence. On its own it proves nothing, but it would be reasonable to infer from the email that the client’s tendon was torn.

Direct evidence is usually preferable to indirect evidence.

Step 4: Is any of the information clearly inadmissible?

At this point, we have barely touched on the rules of admissibility, although we explored the concept last week. The rules will become clearer over the course of the semester. If proposed evidence is clearly inadmissible, then it makes little sense to rely on it.

Step 5: Which evidence is most reliable?

The more reliable a piece of evidence is, the more likely it is to be accepted by the court. For instance, evidence from the defendant that his Achilles tendon was painful and he was unable to run might be considered unreliable, as the defendant has a pretty clear reason to claim he was unable to run! Evidence from the doctor would be considered more reliable, both from the inherent professional reputation of the doctor, and from the doctor’s disinterestedness in the specific case. Obviously, the more reliable a piece of evidence is, the more likely we are to use it.

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Step 6: Which reliable evidence is most probative?

The final step in choosing our evidence is to work out, from those items of evidence which we believe are admissible and reliable, which are most probative? Which are likely to be considered strongest in terms of convincing the court that our facts are true?

Step 7: In what form is the evidence?

Once we have worked out which of our potential evidence we want to bring to the court, we can consider the form of the evidence, to determine what steps we will have to take to have it admitted. This step will become clearer as we examine the various types of evidence in coming weeks.

So now, that we understand the general process, let’s take an overview look at the various types of evidence we might bring before the court.

Activity

Sort the following into order of preference for proving a fact in issue:

(a) Inadmissible, direct evidence.

(b) Reliable direct evidence.

(c) Unreliable indirect evidence.

(d) Unreliable direct evidence.

Answer: (b) is clearly the best and (a) is clearly the worst. The two unreliable types of evidence would both be unlikely to be used. The best order would be (b), (d), (c), (a).

In the example which has been used in this section, why is the defence providing evidence of the torn Achilles tendon?

(a) Because the defence bears the onus of proving that the defendant did not commit the crime;

(b) Because the prosecution has met its burden of proof by showing that the defendant ran from the scene, and the defence must disprove that;

(c) Because, even though the prosecution has not done enough to link the defendant to the crime, it is in the Defence’s interests to maximise the jury’s doubt that the defendant would have committed the crime; or

(d) Because the defence is raising a new defence, that of mistaken identity.

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Answer: A case could be made for (c) or (d), but (d) is the best answer. Having asserted that the defendant was not the one running from the scene, the Defence must provide some modicum of evidence. (a) is clearly wrong, and (b) is not supported by the facts given above - the prosecution has done nothing to show that the defendant was the one running from the scene.

3.0 Testimony

Testimony is almost certainly the most ancient and venerated form of evidence. Since well before the days of paper, we know that witnesses have been brought before their rulers for the purpose of dispensing justice. Even today, with all of our modern technology, the testimony of witnesses is still regarded as the “gold standard” of evidence in our justice system.

Testimony is evidence given viva voce about things which the witness has learned through the use of their five senses.

The term viva voce literally means “with the living voice”. It refers to the fact that testimony is given in an interview style, where counsel ask questions, and the witness gives answers. This is different from, say a monologue, where the witness might appear before the court and simply read from a prepared speech; or a dialogue, in which the witness and lawyer might have a discussion, with both contributing facts to the discussion.

Second, a witness may only give evidence about things which they have learned through the perception of their own five senses. However, any of the five senses will do. In the powerpoint slides, I refer to the US case Ogden v Illinois. In this case, the offender obscured his face with a red flannel and knocked on the door of the victim’s house. When the victim opened the door, the offender demanded money or else he would “blow [the victim’s] brains out.” The offender was identified by the victim’s wife, on the basis of the sound of his voice. An appeal against this method of recognition was not upheld.

If you have not had much experience with US judgments, Ogden v Illinois is worth a read. It is a short case, but will expose you to the slightly different judicial style employed in the US, compared to Australia and the UK.

3.1 Competence

Who is competent to give evidence? At a basic level, one would assume that a being is only capable of giving evidence if they are able to use their five senses; or if they are able to participate in a viva voce discussion (even with assistance). Consequently an infant with no vocal skills, or a person suffering from “locked in

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syndrome” where they are alive but in a state of total paralysis, might be unable to give evidence.

Beyond these obvious cases, the real question is whether the witness is able to understand the nature of the oath they are required to give as a witness, and the nature of the duty to tell the truth. If a person was unable to understand the nature of their oath, administering it would be futile; and if they were unable to understand the duty to tell the truth, their evidence could not be relied upon.

The judge determines, as a question of fact, whether a witness is competent to give evidence in a trial. In your readings, you have been directed to a famous trial, R v Hill. In this trial, Hill supervised the infirmary in what was then described as a “lunatic asylum.” He was assisted by a patient named Donelly, who constantly heard voices in his head, and felt himself to be surrounded by spirits, but who was otherwise quite lucid and rational. Hill was accused of the manslaughter of another patient, Barnes. Donelly observed some elements of the alleged offence. The question for the court was whether Donelly, as a “lunatic” could give evidence.

The court found that although Donelly had a serious mental affliction, he was able to understand the nature of his oath, he was able to understand the nature of his duty to tell the truth, and he was able to distinguish between those thoughts which were his own (and which were therefore evidence) and those thoughts which were given to him by the voices within his head (and which were therefore not evidence). Provided Donelly gave evidence truly, and only spoke of those things which he (and not the surrounding spirits) knew, he was competent to give evidence.

In Queensland, the Evidence Act 1977 has slightly modified the position in relation to competence. The Evidence Act contemplates two types of evidence: sworn and unsworn.

A person is competent to give unsworn evidence “if, in the court's opinion, the person is able to give an intelligible account of events which he or she has observed or experienced.” [s 9A]

Every person is assumed to be competent; consequently a party wishing to challenge the competence of a witness will need to demonstrate the incompetence. [s 9]

However, a person is only able to give sworn evidence if they meet the requirements of section 9A, and in addition, if they understand that “the giving of evidence is a serious matter” and that “in giving evidence, he or she has an obligation to tell the truth that is over and above the ordinary duty to tell the truth.”

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3.2 Compellability

The giving of evidence is not optional - giving evidence when called to do so is one of the fundamental duties of citizenship. Counsel may choose not to call witnesses - they may particularly choose not to call reluctant witnesses - but at the end of the day, any person who is called before the court to give evidence, must do so.

The general principle to be applied here is that any person who is competent to give evidence may be compelled to give evidence, unless they can demonstrate that they have some lawful for of excuse not to attend. In ex parte Fernandez, a witness refused to give evidence on the basis that the evidence might incriminate him; however rather than refusing to answer specific questions on this basis, the witness refused to attend the court at all. The judges quite correctly made the point that any person is compellable; and if they have an excuse, they must show this excuse to the court. A person cannot simply excuse themselves from attendance, no matter how good their excuse.

In the common law, for many years there was a rule that husbands and wives were not compellable to give evidence against one another. This rule had two sources: common sense indicated that marital partners would be under great stress if they were to give evidence against one another; and second, the old common law notion that husband and wife were one legal personality. Under the latter doctrine, a wife giving evidence against the husband would have the same character as a husband being forced to give evidence against himself.

This rule has now been abolished in Queensland [s 7(b)].

In a criminal matter, the accused person is not compellable to give evidence. They may maintain their right to remain silent as the trial plays out. Most criminal defence lawyers will go to great lengths to avoid the need to place their client in the witness box.

Activity

A mentally ill man who is convinced that he is Napoleon Bonaparte witnesses a major theft. The witness is perfectly coherent and will give evidence of what he saw, but he will only answer to the term “Your Excellency” and will only speak French on formal occasions. He refuses to take an oath, arguing that as a head of state he cannot give an oath to a foreign crown. However he is willing to swear on the French flag to tell the truth.

Is the witness:

(a) Not competent;

(b) Competent to give sworn evidence;

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(c) Competent to give unsworn evidence;

(d) Competent and compellable.

Answer: Arguably (d), but most likely (c). The witness is clearly competent to say what he saw, and his perceived self-identity is irrelevant to his evidence. As an Australian citizen he may be called to give evidence, and given that he appears to understand the nature of the oath he could be forced to take it, or else fact contempt proceedings. Given that it is unlikely that a mentally ill man would be jailed under these circumstances for contempt, the most likely outcome is that he will give unsworn evidence, if called at all.

3.3 Privilege

Privilege is slightly different from compellability, and the two are often confused. Compellability refers to whether a witness may be compelled to appear at all; privilege refers to whether a witness may have a reason for refusing to answer specific questions. Questions outside the relevant privilege may validly be put to the witness.

There are a number of privileges to be aware of:

Self-incrimination: A witness may not be required to give evidence which would tend to incriminate them, that is, which would tend to show that they had committed a criminal offence [ s 10]. However, the defendant in a criminal trial may be asked - and must answer - questions tending to incriminate them in relation to the offence with which they have been charged [ s 15]. This seems fair, because the defendant has the option to not give evidence at all. If they choose to give evidence, they ought to be fair game for difficult questions.

Client Professional Privilege: As you will learn when you do your professional conduct subject, information which passes between a lawyer and client for the purpose of obtaining legal advice or preparing for litigation, is subject to a privilege. The lawyer must not disclose that information without the client’s agreement [Legal Profession Act 2007 (Qld) s 491(1)]. Again, this seems fair, because a person should be able to consult freely with their legal adviser while contemplating litigation.

Parliamentary Privilege: The statements of members of parliament, and witnesses before parliamentary committees, cannot be called to account before any court. This privilege goes back as far as the Bill of Rights 1688, and is in place to protect free speech within the parliament. Note, however, that each parliament has a privileges committee which can hear complaints by people who believe they have suffered as a result of parliamentarians or others defaming them under the protection of parliamentary privilege.

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3.4 Observation Evidence

Observation evidence is the fundamental type of evidence given by witnesses. In its ideal state, it consists of witness reports of specific observations they have made with their five senses, without any additional interpretation.

In practice, however, most observation evidence includes some level of opinion, or some level of interpretation. To take an obvious example, consider the following two statements:

1. When I got home I saw a human being in the front yard of my home. He was wearing jeans, shoes, a black shirt and a hat. He was pushing a wheeled mechanical device. The areas of grass over which the device had travelled appeared to be cut to a uniform level.

2. When I got home, my husband was mowing the lawn.

You can see that the second of these does in fact contain interpretations rather than observations. The witness is interpreting, from visual data, that the person was her husband; and she is interpreting, from experience, that his actions were those of mowing the lawn. Realistically, however, these are uncontroversial interpretations based on human experience. They are still, in every sensible way, observation evidence.

3.5 Opinion Evidence

Opinion evidence is characterised by more potentially- controversial interpretations. We will spend a full week later in the course discussing opinion evidence. Opinion evidence should be minimised in most circumstances, and will often be inadmissible, for instance, consider the following two pieces of evidence:

1. I saw a car moving down the road, overtaking other vehicles on the road. I then observed the tail lights to illuminate, heard a screeching sound similar to tyres under heavy braking, and saw the back end of the car “fish-tailing.” I then saw the car collide with a power pole and smoke began emerging from under the bonnet.

2. I saw a car driving down the road. It was really rocketing, the driver was driving like a complete hoon. A few moments later he hit the brakes but it was too late and he smashed into the power pole.

Is the second of these useful evidence? Is the witness capable of making an assessment that the car was “really rocketing”, or was the first witness’ observation that the care was “overtaking other vehicles” more useful? Is the

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second witness’ assessment of the driver as a “complete hoon” useful evidence? Is her assessment of whether the driver braked in time a valid one?

At this point in the course, the key message in relation to opinion evidence is that while it may be impossible to avoid altogether, it is less useful than observation evidence.

3.6 Hearsay Evidence

We will spend three weeks discussing the hearsay rule and its exceptions. This rule, and its operation in cases, is really the core of this course. At this stage, let’s keep it simple.

Observation evidence, we now know, occurs when a witness tells the court about what they observed with their five senses.

Hearsay evidence occurs when a witness tells the court about what someone else observed with their five senses. An example will make this clear:

Carol: I was just sitting at the bar, when Megan came up. She screamed at me and called me a bitch, then attacked me with a smashed glass.

Susan: Carol came home with blood on her face. She told me it was from Megan attacking her in the bar.

Carol’s evidence is pretty clearly observational evidence. Megan, of course, might tell a different story - but Carol’s evidence will still be valid observational evidence. Let’s focus on Susan’s evidence.

Susan’s first statement - “Carol came home with blood on her face” is observational evidence. She saw Carol come home, with blood on her face. Let’s look closely at her second statement: “She told me is was from Megan attacking her in the bar.”

What can we learn from this second statement? Well, on the one hand we can treat it as observational evidence. So, as a result of Susan’s statement, we know that after Carol got home she claimed Megan had attacked her.

Can we learn any more than that, from Susan? Most importantly, can Susan tell us anything about whether Megan actually attacked Carol in the bar? We really can’t. This sort of evidence is hearsay.

In most cases, hearsay evidence is not going to be useful, and it will usually be inadmissible. It is always preferable, wherever possible, to obtain evidence directly from the person with first hand observations.

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There are a range of exceptions to this rule - for instance, if the person who made the observations has died, or if they have since changed their story - and we will deal with these in coming weeks. In general, though, avoid hearsay evidence.

4.0 Documentary Evidence

For the purpose of evidence law, a “document” is anything upon which information can be stored and later retrieved. The most simple type of document, of course, is a piece of paper with writing on it. However photographs, computer disks, labels, maps, old-school computer punch cards, pianola rolls, and anything else on which data might be stored, counts as a document.

Documents can be admitted into evidence, but they face a surprising number of hurdles.

First, consider that almost every document is, in essence, hearsay. The document does not contain the observations of the document itself; it contains the observations of some person or agent who has caused the data to be stored on the document. If that is the case, and if (as we already know) testimony is the preferred form of evidence, then why not simply get the original document-maker to give evidence?

Second, a document on its own proves nothing. Let’s think about a document you will all be very focused on - your law degree. Your degree certificate, on its own, means nothing. It is just a piece of paper. A sufficiently enterprising counterfeiter could do a good job of producing one. Your degree is only useful because, in effect, the University will be prepared to stand behind the degree and authenticate it. The University will be prepared to say “Yes, we gave this person a Bachelor of Laws degree after they completed the required course of study and examination.”

In the same way, documents led in evidence must be authenticated by a human being. An email, for instance, might have been sent from a person’s account without their knowledge. The email itself, as a result, does not prove anything about whether that person is responsible for its contents.

This leads us back to our previous conundrum: if a person must be called to give evidence authenticating the document, why not just get them to give testimony evidence?

In fact, documentary evidence can sometimes be very useful, and the law has changed to enlarge the circumstances in which it can be used. These will be discussed in week six. For now, consider only that documents will usually have to find their way around the hearsay rule, and that they will require authentication by a human being.

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Activity

Which of these is the most pure observation evidence:

(a) I saw a man, aged approximately 40, and about 6 feet tall, enter the bank.

(b) I saw a grubby looking older guy sneaking into the bank.

(c) I saw an adult male enter the bank.

(d) I watched this bloke go in to rob the bank.

Answer: (c) is the most pure, although (a) would be regarded as observation evidence. (b) and (d) are replete with opinion.

Which of these is NOT a document:

(a) A T-Shirt bearing the slogan “I hate nosepickers”

(b) A birthday card with a message written inside

(c) A soft drink can

(d) A credit card

(e) None of the above

Answer: (e). All of the others bear some form of writing or data and, if admitted to evidence in order to allow the court to take account of that writing or data, they would be documents.

5.0 Real Evidence

The third category of evidence we might produce before the court is real evidence. Real evidence refers to evidence which the court is able to see, hear, touch, or otherwise experience for itself, rather than having the evidence described by a witness.

It won’t take you very long to work out that I am not a great believer in real evidence. It may, on occasion, be extremely useful; however these occasions are likely to be few and far between. There are four key categories of real evidence for our purposes:

Exhibits

Exhibits are items which are brought before the court. Examples might be a murder weapon, or a cache of confiscated drugs, or a sample of merchandise claimed to be defective.

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Exhibits should only be brought before the court when the presence of the exhibit can provide information which cannot be provided by a person. For instance, if we have information from a ballistics expert that a particular bullet was fired from a particular rifle, it is hardly helpful to produce the bullet in court.

One complication of exhibits is that they must be authenticated by a witness. That is, there must be a witness capable of reassuring the court (a) that the exhibit is indeed the item relevant to the case, and (b) that it has not been tampered with or altered in any material way since it was obtained. Again, if it is necessary to call a human being to give testimony evidence about the exhibit, it is open to wonder whether the exhibit itself adds anything.

Witness demeanour

Witnesses are not only useful to the court in terms of what they say. The demeanour and conduct of the witnesses, or other aspects of their physical appearance, are factors which the court is entitled to take into account. This may help the court decide how credible a witness it; however the appearance of the witness may also be evidence in, and of itself. For instance, a jury might take account of the age and frailty of a defendant in deciding whether the defendant could have undertaken the acts of which they are accused.

Demonstrations

Courtroom demonstrations are big in Hollywood, and seem to be used more often in the United States, but there are good reasons for grave doubts about their utility.

Consider the photograph which accompanies the “Demonstrations” slide in this week’s powerpoints. In this case, a woman was accused of tying her husband to the bed, and then murdering him by stabbing him 193 times. Her defence, in essence, was that she was terrified of her husband and that she had been acting in an immediate fit of fear and anxiety.

The prosecution sought to make the point that her “immediate fit” must have continued for an extended time in order for her to stab her husband 193 times. In order to emphatically show how long this would have taken, the prosecution had the actual bed brought into the courtroom, had an actor ties to the frame, and then had another person re-enact the stabbing 193 times.

Was this a good method of proof? Certainly it would have grabbed and held the attention of the audience, but couldn’t the same point have been made via testimony, or simply via human experience?

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A more usual, and less controversial form of demonstration occurs when a witness, giving evidence about an action they performed, demonstrates that action (for instance, putting up their hands to defend themselves). In this situation, the “demonstration” is little more than an adjunct to the witness’ oral testimony.

Views

“Views” occur when the members of the court leave the courtroom, and go to another place to view material which cannot, or cannot conveniently, be brought to the court. This is most obviously undertaken when the court wishes to view a geographical scene or building.

“Views” have two purposes; one is clearly valid, the other is more controversial. The first, uncontroversial purpose, is to allow the court to better understand evidence which has been given in another form. Despite the best efforts of witnesses to describe a scene, it may not be genuinely possible to understand a scene without having visited it. A view in this sense might not really be regarded as evidence at all - its purpose is not to render a fact more or less likely; it is more analogous to the use of a dictionary to assist the court to understand a particular word.

The second, more controversial use of a view, is to actually treat the view as evidence. The common law has always regarded this activity as highly suspicious. Even landscapes change over time - variables such as weather, lighting, season, and the state of vegetation might mean that the circumstances of a view might be very different from the circumstances that prevailed at the time of the facts alleged to be proven by the view.

Under the Uniform Evidence Acts, the rules for views have been substantially relaxed, so that now a view may be undertaken on the same terms as a courtroom demonstration (that is, a view will be regarded as actual evidence). See Evidence Act 1995 (Cth) ss 53-54.

6.0 Facts proven other than by evidence

As a general rule, asserted facts will not be accepted by courts unless they are supported by sufficient evidence. However this rule is not absolute. Several types of fact may be accepted without evidence being supplied. At this stage we will consider judicial notice, and formal admissions.

6.1 Judicial Notice

“Judicial Notice” is really a formalisation of common sense. If something is so well known that “every ordinary person may reasonably be presumed to be aware of it”

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then there will be no need to provide evidence. Many examples may be given; it will not be necessary to prove by evidence that Wednesday follows Tuesday; it will not be necessary to prove that the word “pot” may in certain contexts be used to describe marijuana; it will not be necessary to prove that a normal human pregnancy is approximately forty weeks; and so forth.

The example given in the powerpoint slides is from Nye v Niblett, in which case some boys were charged with cruelty towards a cat. The boys were charged under an Act which related to domestic animals (as opposed to stock or wild animals) and their defence sought to lead evidence that the prosecution had failed to show that this particular cat was a domestic animal. The prosecution, responding to the appeal, successfully argued that the fact that cats are domestic pets is so notorious that judicial notice should be taken of it.

Do you think the same decision would be made in Australia? Do you think the same decision would be made, for instance, in inner-city Brisbane, and in Western Queensland, which faces a feral cat problem?

6.2 Formal Admissions

You might remember from last week that, in order to be admissible, evidence must be relevant. In order to be relevant, it must tend to prove a fact in issue.

In many cases, a substantial number of the facts will not be in issue. Particularly in civil cases, where both sides are watching their costs carefully, it makes considerable sense to simply agree that certain assertions may be taken as facts, and then to concentrate on those aspects of the case where differences remain. Indeed, the process of exchanging pleadings in a civil case is intended to have precisely this effect.

A fact which both sides agree to be true is said to be formally admitted. The case will proceed on the assumption that the formally admitted fact is true, without any further inquiry and without any further need for evidence.

For instance, consider a contracts case, where Party A is suing Party B for breach. The formation of the contract, and the contents of the contract, and the actual conduct of Party B, might not be in issue. Both sides might actually agree to all of those things, while disagreeing as to whether Party B’s conduct actually met its obligations under the contract. In this situation, the parties might formally admit the formation and contents of the contract, and the performance of Party B. This will save great time and expense when the parties come before the court.

The concept of formal admissions is also useful in a criminal context. A defendant might admit the physical elements of an offence but might argue that the fault elements were not present; or they might admit all of the elements of the offence

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but argue that a defence applied. If they do so, the prosecution will not be required to present evidence of those things which have been admitted.

7.0 Tutorial Questions

Evidence in the movies: Erin Brockovich

This movie is a terrific example of how varying types of evidence can be painstakingly collected and logically assembled to produce a compelling legal narrative. It’s worth watching the whole movie, but for those of you who are unfamiliar with it, the following clips will do. They are arranged in sequence from the movie (warning: some sexual references and vulgar language).

http://www.youtube.com/watch?v=kDfvxJUxL10&list=PLFF9E6A0A05B07400&index=3

http://www.youtube.com/watch?v=5Jdk3riKKwo

http://www.youtube.com/watch?v=kFCUCnNKmmI&list=PLFF9E6A0A05B07400&index=5

http://www.youtube.com/watch?v=0wVgg5t2LAM

Consider the following:

1. From the excerpts shown, and from the full movie if you have seen it, what are the different types of evidence which Brockovich prepared to support her legal position?

2. If you were representing the opposing firm, PG&E, what evidence would have you the most concerned, both during negotiations and if the matter came to trial?

(a) Testimony from litigants describing their medical issues;

(b) Persuasive demonstrations, such as the attorney who is given a glass of water from the allegedly contaminated site;

(c) Evidence from scientific experts about the safe levels of the contaminant, and the actual levels in the local environment;

(d) Evidence relating to the medical conditions experienced by those exposed to the contamination; and

(e) Evidence of internal memos indicating that the company was aware of the potential harm but did nothing to correct it.

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3. If you represented PG&E and had to find ways to weaken Brockovich’s case, where would you focus? Which evidence, if removed or rebutted, would do the most harm to her case?

Competence and Compellability

Recently in NSW the premier sought to remove the “right to silence” from those charged with criminal offences. This would have the effect of making an accused person both competent and compellable to give evidence, even if called by the prosecution - because their very silence would be a form of evidence, allowing conclusions to be drawn against them.

Research the public debate, and consider the arguments for and against the Premier’s proposition. Here is some material to get you started: http://www.youtube.com/watch?v=U-gDmnPpVag

9.0 Review

In Topic 3 you have learned:

● The seven-step process of determining what you must prove to the court, and how you might gather appropriate evidence to support your assertions;

● The nature of testimony as viva voce evidence about things observed directly by the witness;

● That competence to give evidence describes a person who is able to assist the court by providing information of their observations;

● That a witness is compellable if they are under a duty to provide evidence to the court;

● That witnesses who are compellable may under certain circumstances claim a privilege to refuse to answer specific questions;

● The distinction between observation and opinion evidence (and the fact that the distinction is not always clear);

● The general nature of hearsay evidence as evidence of things someone else has observed;

● That a document is anything upon which data may be stored and retrieved;

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● That documents may be used as evidence, but their use is somewhat complicated and testimony should be preferred;

● That there are four types of real evidence: exhibits, the demeanour of the witness, courtroom demonstrations, and views;

● That real evidence brings with it some substantial complications, and it is rarely the preferable form of evidence; and

● That certain facts do not need to be supported by evidence, because they are formally admitted, or they are the subject of judicial notice.

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