Lwb 432 Sarah Fynes-Clinton
Topic 1 – Sources of the Law of Evidence
1: The Law of Evidence
Oxford Dictionary
Definition of “evidence”:
“… the available facts, circumstances, etc supporting or otherwise a belief, proposition, etc., or indicating whether or not a thing is true or valid…”
The “law” of evidence has three main elements:
(1)prescriptive rules;
(2)ethical principles; and
(3)forensic practices.
All of these govern how facts and other information are adduced in court proceedings, both civil and criminal.
Evidence is concerned with:
(1)the kind of evidence which will be accepted by a court;
(2)the amount of evidence which will be required by a court;
(3)the manner in which evidence must be presented to a court; and
(4)the persons who may (and often must) give that evidence.
2: Sources of the Law of Evidence
(1)The prescriptive rules of evidence for Queensland and Commonwealth courts come from a number of sources:
(a)the common law;
(b)the Evidence Act 1977 (Qld) (herein referred to as QEA);
(c)the Evidence Act1995 (Cth) (herein referred to as CEA);
(d)the Judiciary Act 1903 (Cth).
Read s.79 of this Act and s 4 of the Evidence Act 1995 (Cth).
The Evidence Act 1995 (Cth) applies in Commonwealth courts only, save for the sections set out in s 5 which apply in all Australian courts.
Under s 79 of the Judiciary Act, where a “gap” exists in Commonwealth evidence rules this is filled by the rules of evidence of the state where the Commonwealth court is sitting.
Also under s 79, the rules of evidence that apply in State Courts exercising federal jurisdiction are those of the State court itself, not those found in the Evidence Act 1995 (Cth).
(e)miscellaneous legislation eg., Criminal Code (Qld), Uniform Civil Procedure Rules (Qld), Family Law Act 1975 (Cth), Crimes Act 1914 (Cth).
(2)Ethical principles and forensic practices derive from other sources.
Later in this Chapter we will look at some of the ethical principles that form part of the “law” of evidence, and where they come from.
Forensic practices will be considered at relevant points throughout the Study Guide, lectures and tutorials; particular emphasis on these aspects will be given in the section on The Trial Process.
Commonwealth Evidence Act
The CEA applies to federal courts created by the parliament: the Federal Court, Family Court, High Court, AAT:
4.(1) This Act applies in relation to all proceedings in a federal court or an ACT court, including proceedings that:
(a)relate to bail, or
(b)are interlocutory proceedings or proceedings of a similar kind; or
(c)are heard in chambers; or
(d)subject to subsection (2), relate to sentencing.
Tribunals are not strictly bound by the laws of evidence, but many agree that it is in the interests of justice to treat themselves as bound by the provisions of the Evidence Act.
In respect of certain matters, the CEA applies toall proceedings in any Australian Court:
5.The provisions of this Act referred to in the Table apply in relation to all proceedings in an Australian court, including proceedings that:
(a)relate to bail, or
(b)are interlocutory proceedings or proceedings of a similar kind; or
(c)are heard in chambers; or
(d)subject to subsection (2), relate to sentencing.
The table then specifies areas of Commonwealth power, such as evidence of tags and labels in Customs prosecutions, seals and signatures, Gazettes and other official documents, Public documents relating to court processes, etc.
Because the CEA is not a code, if there were a topic that the Act didn’t deal with, there would be room for the common law. Eg. Res gestae
State Courts exercising federal jurisdiction:
The law of evidence of the particular State applies in State Courts exercising federal jurisdiction. Eg. QEA applies in Qld Supreme Court where the court is exercising federal jurisdiction.
Judiciary Act 1903 (Cth) s.79:
s.79 is a general provision if there is no Commonwealth law on the point (ie. the provision is not solely about the laws of evidence).
If there is a gap in the CEA, then the evidence law of the State in which the Commonwealth Court is sitting is the law to apply.
So for example, if the Federal Court is sitting in Brisbane and a gap is found, it will be the law of Qld (the QEA + Common law) which is to fill the gap. This is fairly absurd. The ACT and NSW have adopted the CEA so it will be effectively applying the CEA anyway.
State Courts which exercise federal jurisdiction (CEA does not apply to them at all) thus it is State law which applies to a State court even though they are exercising a federal jurisdiction.
3: The Adversary System
Adversarial system / Inquisitorial system- The parties gather and present the evidence
- The evidence is mainly testimonial: live and in the court room.
- One continuous trial
- Rules of evidence can be waived by agreement between the parties.
- Judge’s role is reactive - they will intervene and impose sanctions for breach only if objections raised.
- the judge, assisted by lawyers employed as independent officers of the court, gather the evidence.
- most evidence is documentary
- small parts to be collated at a later time
- There are no rules of evidence. If it is relevant, it is admissible. Argument is largely confined to substantive legal issues.
- Judge’s role is proactive – if questions are put to a witness, it is the judge who will ask them
4: Functions of Trial Judge, Counsel and Jury
The Judge
decide the law to be applied,
decide questions of law:
admissibility of evidence
exercise of judicial discretion
rule on objections raised by counsel.
Judges asking questions of witnesses
should not be done until all questioning by counsel is complete.
should only occur in the interests of justice, and confined to issues raised by counsel
BUT - A judge may ask questions at the request of the jury on relevant and admissible matters even if those matters were not raised by counsel: Hsing
Power to call witnesses
Apostilides:
A trial is generally between parties, and the conduct of the evidence is in principle the concern of the parties.
However there are cases in which the judge is justified in calling a witness.
This right is to be exercised with extreme caution since the judge lacks the knowledge and information about the case and the witnesses, etc.
In both civil and criminal cases in Australia the rule is:
“A witness cannot be called by a judge save with the consent of both parties, and then only in exceptional circumstances.” Apostilides
The judge has the power to exclude witnesses from the courtroom until they are called to give their evidence.
Counsel
It is the job of counsel to best present their client’s case within the constraints imposed by the rules of procedure and the rules of evidence.
It should be noted that counsel’s primary duty is to the court, because they are an officer of the court. Their secondary duty is to the client. If there is a conflict between the duty to the court and the duty to the client, their duty to the court prevails.
presenting evidence, opening and closing addresses in which the case is summarised and its strong features highlighted.
The legal representatives have an ethical duty to ensure that material evidence is not suppressed without acceptable reason; in this way the system assumes that the truth can be ascertained despite the broad measure of control otherwise exercised by the parties: Annewetey
One of counsel's functions is to maintain observance of the rules of evidence by taking objection when an opponent attempts eg., to introduce inadmissible material. Objection should be made immediately the grounds for it become apparent and of course counsel must be prepared to argue those grounds to the judge and to support them with authorities.
Counsel will generally be trying to minimise the impact of the other side’s evidence.
Jury
The jury must:
determine issues of fact
give a verdict of guilty or innocent
In deciding the true facts from the evidence received, the jury’s primary function is to determine the “credibility” of the witnesses. Which witness should the jury believe?
NB only a handful of civil trials out of the thousands heard each year in the superior Courts are conducted with a jury.
In relation to criminal trials, a jury is only present for trials involving serious offences.
Where there is no jury, the judge is the “tribunal of fact” and decides the above matters.
Every person on an electoral role could be selected to be on a jury.
A jury can be directed by a judge to bring in a verdict of “not guilty” but cannot be directed to bring in a verdict of guilty.
The judge would only make such a direction after the prosecution has completed its case and before the defence has opened its case.
5: Ethical Principles
The long-settled principle of almost absolute judicial independence means that Judges and Magistrates in Queensland have almost unfettered discretion as to how they conduct themselves in court. Society relies on their propriety as a matter of expectation not formal regulation.
In this unit we are more concerned with ethical principles that affect the role of counsel, particularly those associated with obtaining the testimony of witnesses. For example, counsel have an ethical duty to ensure “material” witnesses (those with knowledge of a significant matter) are called, unless there are acceptable reasons otherwise. In this way the system assumes that the truth can be ascertained despite the broad measure of control delegated by the system to the participants themselves. Read Annewetey [1976] Qd R 161.
This example illustrates how counsel’s duty to the court outweighs counsel’s duty to his or her client on some occasions. Sometimes the dividing line between the two duties is unclear. Read Giannarelli v Wraith (1988) 62 ALJR 611.
We will continue to refer here to criminal trials as a model. However, most principles of ethics that apply in the criminal courts carry over either in whole or in part to practice in the civil jurisdiction.
Read Hunter & Cronin pp 174-187. Notice in particular:
how the inherent partisanship of the adversary system is tempered by an ethical code of conduct
the advocacy rules of the Australian Bar Association
the tension, at the heart of the adversary system, between procedural disclosure and forensic trial tactics. How is this appropriately dealt with by counsel for either side?
General matters relating to Trial
The Adversary System
- Parties control the evidence that goes before the court, eg. witnesses
- Evidence is usually given orally in court, in question and answer format.
Commonwealth Evidence Act Provisions
s.26: the court may make such orders as it considers just in relation to:-
- the way in which witnesses are to be questioned
- the production and use of documents and things in connection with the questioning of witnesses
- the order in which parties may question a witness
- the presence and behaviour of any person in connection with the questioning of witnesses
The CEA assumes the continued existence of the adversary system. The intervention of the trial judge should be only in exceptional cases.
s. 27:
A party may question any witness except as provided for by the Act.
“Witness” is defined in the CEA Dictionary and includes a party giving evidence including a defendant in a criminal trial.
[Note that the provision is silent as to the power of a trial judge to question a witness and thus the common law position is likely to remain.]
s. 29:
(1)A party may question a witness in any way the party thinks fit, except as provided for by the act or as directed by the judge
(2)A witness may give evidence wholly or partly in narrative form if the party calling the witness has applied AND the court so directs.
[This means that instead of answering designated questions by counsel, the witness actually narrates the story of the events in testimony. ]
(4)Evidence may be given by way of charts, summaries or other explanatory material if it appears to the court that the material may aid interpretation.
This accords with the common law as referred to in Butera that oral testimony is desirable but in complicated cases the use of charts is useful in interpreting the evidence.
The Order of proceedings
- Plaintiff or Crown Opening
Counsel for plaintiff or Crown summarises the nature of the case, explains to the judge and/or jury what type of case it is and what the Crown or Plaintiff intends to prove. Then the Crown or plaintiff summarises the evidence that they intend to call to prove their case.
- Plaintiff or Crown witnesses are called
One by one the crown or plaintiff calls witness which have been opened. Unless exceptional circumstances, never call a witnesses unless opened.
This involves:
(a)examination in chief
(b)cross-examination – all parties who have not called the witness have an opportunity to ask questions
(c)re-examination – the party who has called the witness may ask further questions to clarify issues raised in the cross examination.
This process is repeated for each witness.
The trial judge may want to ask questions of the witness: should be left to the end of re-examination, and shouldn’t open new material, but simply clarify issues.
In exceptional cases, it is possible for the judge to call witnesses: Apostilides.
- Defence Opening
Defence counsel explains what they intend to do. Eg. “we don’t intend to call any witnesses at all” or “we intend to raise the defence of X”
Variation:
In some Magistrates courts the Magistrate may call on the defence to open their case before the Crown has put their witnesses.
- Defence Counsel calls their witnesses
One by one examination in chief, cross-examination and re-examination.
- Defence closing address
- sums up evidence given in the witness box
- draws attention to favourable aspects and seeking to downplay the unfavourable aspects.
- Make submissions of law: cases or statutes
Variation: If defence calls no witnesses, the order reverses: the plaintiff or the Crown closing address is heard now. This gives the defence the last word before the jury goes out.
- Plaintiff or Crown closing address
- Draw attention to favourable evidence
- Downplay unfavourable aspects.
- Make submissions of law: cases and statutes
- The trial judge’s summing up
This always happens when there is a jury. Often happens without a jury too. The judge will direct the jury to matters of law which they need to know. The judge also gives any warnings/directions to the jury not already made in the trial itself.
- Verdict
If there is a jury they enter a verdict. If no jury – the judge enters a finding of fact.
- Judgement
Judgement recorded is the one which follows from the facts found in the verdict.
- Appeal
3 possibilities:
- something wrong in the trial process itself eg. inadmissible evidence admitted
- verdict inappropriate to the evidence (“against the weight of evidence”)
- Judgement does not as a matter of law bring about the result that necessarily follows from the verdict.
Note Where >1 defendant or plaintiff – each counsel or plaintiff in turn then each defendant in turn.
CEA
s 28: unless the court otherwise directs:
(a)cross-examination of a witness is not to take place before the examination in chief of the witness; and
(b)re-examination of a witness is not to take place before all other parties who wish to do so have cross-examined the witness.
Ie. same as common law.
s.192 general matters which a court should have regard to when giving a direction:
(a)the extent to which to do so would be likely to add unduly to, or shorten, the length of the hearing; and
(b)the extent to which to do so would be unfair to a party or to a witness; and
(c)the importance of the evidence in relation to which the leave, permission or direction is sought; and
(d)the nature of the proceeding; and
(e)the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
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