CPPSEC3009 Prepare and Present Evidence in Court
2. Preparing for court proceedings
2.5 Documentation and exhibits are prepared to ensure their acceptability in court
Documentary evidence
The rules of evidence apply to an ordinary document in writing, documents written in braille or shorthand and, importantly for modern records management systems, a document that is in a digital format.
The term 'document' is defined in the dictionary to the Commonwealth Evidence Act to mean any 'record of information', and includes:
The Commonwealth Evidence Act abolished the 'original document rule', which required the production of the original document in writing. The Commonwealth Evidence Act permits evidence of the contents of a document to be given in one of a number of alternate ways. These ways include tendering:
While it is not necessary that the original document be produced, parties may still be required to authenticate evidence of the contents of documents tendered in one of these ways. For example, in relation to a document in writing that is signed, it remains necessary to lead evidence (if the point is contested) that the signature appearing on the document is the signature of the person who has purported to sign it. In the case of digital records, it may be necessary to give evidence that the digital record is what it purports to be.
While several provisions of the Commonwealth Evidence Act facilitate this authentication process, the Act also set out procedures under which a party may test the authenticity of evidence of the contents of documents led under one of the alternate ways in a proceeding.
Usually, these procedures would be used by a party against whom evidence of the contents of a document is, or might be, led in a proceeding.
The procedures, which can be set in motion before the hearing of a proceeding, may result in the making of court orders against the party leading evidence of the contents of the document, including an order that:
A separate issue from how evidence of information in a document can be given is whether the court will permit the evidence to be given (that is, whether the evidence is admissible in the proceeding before the court).
Whether the evidence is admissible depends, initially, on whether it is relevant to a fact in issue in the proceeding. If relevant, evidence may nevertheless be inadmissible if it is excluded by a rule that provides for the exclusion of particular kinds of evidence (for example, the rule against hearsay evidence, the ‘similar fact evidence’ rule, and the rule against opinion evidence).
The most important exclusionary rule in relation to documents is the hearsay rule. The hearsay rule applies when evidence of what is contained in a document is being used to prove some fact asserted in it.
The hearsay rule under the Commonwealth Evidence Act applies to any statement made by a person other than while giving evidence that is led or given to prove the existence of a fact that it can be reasonably supposed that the person intended to assert by the statement.
There are many exceptions to the hearsay rule under the Act including:
The rules of evidence apply to an ordinary document in writing, documents written in braille or shorthand and, importantly for modern records management systems, a document that is in a digital format.
The term 'document' is defined in the dictionary to the Commonwealth Evidence Act to mean any 'record of information', and includes:
- 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; and
- a map, plan, drawing or photograph.
The Commonwealth Evidence Act abolished the 'original document rule', which required the production of the original document in writing. The Commonwealth Evidence Act permits evidence of the contents of a document to be given in one of a number of alternate ways. These ways include tendering:
- the original document, which may be physical or digital;
- a copy (physical or digital) of the document produced by a device (such as a photocopier or a computer) that reproduces the contents of documents;
- a transcript of a document recording words (such as an audio tape or shorthand notes);or
- a business record being a physical or digital extract, summary or copy of the document.
While it is not necessary that the original document be produced, parties may still be required to authenticate evidence of the contents of documents tendered in one of these ways. For example, in relation to a document in writing that is signed, it remains necessary to lead evidence (if the point is contested) that the signature appearing on the document is the signature of the person who has purported to sign it. In the case of digital records, it may be necessary to give evidence that the digital record is what it purports to be.
While several provisions of the Commonwealth Evidence Act facilitate this authentication process, the Act also set out procedures under which a party may test the authenticity of evidence of the contents of documents led under one of the alternate ways in a proceeding.
Usually, these procedures would be used by a party against whom evidence of the contents of a document is, or might be, led in a proceeding.
The procedures, which can be set in motion before the hearing of a proceeding, may result in the making of court orders against the party leading evidence of the contents of the document, including an order that:
- the original document be produced;
- a party be permitted to examine, test or copy a document;
- a person concerned in a records management system be called to give evidence; and/or
- in the case of a records management system, that a party be permitted to examine and test the way in which the document was produced or has been kept.
A separate issue from how evidence of information in a document can be given is whether the court will permit the evidence to be given (that is, whether the evidence is admissible in the proceeding before the court).
Whether the evidence is admissible depends, initially, on whether it is relevant to a fact in issue in the proceeding. If relevant, evidence may nevertheless be inadmissible if it is excluded by a rule that provides for the exclusion of particular kinds of evidence (for example, the rule against hearsay evidence, the ‘similar fact evidence’ rule, and the rule against opinion evidence).
The most important exclusionary rule in relation to documents is the hearsay rule. The hearsay rule applies when evidence of what is contained in a document is being used to prove some fact asserted in it.
The hearsay rule under the Commonwealth Evidence Act applies to any statement made by a person other than while giving evidence that is led or given to prove the existence of a fact that it can be reasonably supposed that the person intended to assert by the statement.
There are many exceptions to the hearsay rule under the Act including:
- evidence admitted for a non-hearsay purpose (where the statement is relevant for a purpose other than to prove the existence of a fact that the person intended to assert, for example, where the fact that the statement was made is relevant). In such a case evidence of the statement can also be used as evidence of what is asserted by the statement;
- first-hand hearsay, the scope of the exceptions depending upon whether the proceeding is civil or criminal and whether the person who made the statement is available or not to give evidence;
- some categories of more remote hearsay (that is, where the evidence is not necessarily first-hand hearsay), such as some statements in business records, some tags and labels or writing attached to, or placed on, objects (including documents) in the course of business and representations in electronic communications regarding the identity of the sender or receiver or time or date the communication was sent; and
- an admission made by a person who is or becomes a party to the proceeding.
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Records in evidence
Problems can arise with legal acceptance of records as evidence if appropriate business practices, including standards and procedures, are not followed in creating and maintaining records. To mitigate this risk and to ensure your business information is well managed, your agency should ensure that records management requirements are met:
Evidence law prescribes the rules of evidence and affects the admissibility of documentary evidence and the weight of that evidence, including digital records and copies.
Case law has implications for records destruction and possible legal proceedings and agency requirements to retain and maintain records in an accessible form if the agency knows that it is reasonably likely that the record may be needed as evidence in a current or future legal proceeding.
This revision of Commonwealth Records in Evidence (pdf, 438kb) takes account of significant legal developments affecting records as evidence since the previous version was published in 2005.
Problems can arise with legal acceptance of records as evidence if appropriate business practices, including standards and procedures, are not followed in creating and maintaining records. To mitigate this risk and to ensure your business information is well managed, your agency should ensure that records management requirements are met:
- its records management practices and systems are reliable
- the records created and maintained in those systems are authentic
- its business and records management systems are supported by business practices that will withstand scrutiny.
Evidence law prescribes the rules of evidence and affects the admissibility of documentary evidence and the weight of that evidence, including digital records and copies.
Case law has implications for records destruction and possible legal proceedings and agency requirements to retain and maintain records in an accessible form if the agency knows that it is reasonably likely that the record may be needed as evidence in a current or future legal proceeding.
This revision of Commonwealth Records in Evidence (pdf, 438kb) takes account of significant legal developments affecting records as evidence since the previous version was published in 2005.
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Admissibility and relevance
Evidence will only be admissible (allowed into court) if it is relevant. Evidence will be relevant where its existence tends to indicate that one of the facts in issue is more or less likely. Basically, the court will ask whether the evidence you are trying to introduce would help to decide the issue(s) before it. For example, in proving a breach of duty in a negligence claim, evidence about current financial hardship is unlikely to be relevant.
Evidence can either be:
Witness testimonies
Generally speaking, you are able to have anyone you wish appear as a witness in a court proceeding. You are also free to determine the order in which these witnesses appear. In calling witnesses, however, you will need to bear in mind the requirement that any evidence they present must be relevant. You should also note the possibility that certain evidence cannot be presented on account of various exclusionary rules discussed above.
All witnesses should be served with a court document known as a subpoena. A subpoena compels the person named in the subpoena to appear in court. This document must be filed in the court registry. If a person fails to comply with a subpoena they may be held in contempt of court (an offence for which they could be imprisoned).
Each witness called may also be entitled to some conduct money to ensure they have sufficient funds to travel to court and appear in court when required.
Things to remember
In order to prove your case, your evidence has to be believed. If you say one thing and the other party contradicts what you say, then the judge (or jury) has to decide which version he or she accepts. The judge will make the decision on the basis of all of the evidence and his or her assessment of the character of each witness. The solicitor or barrister for the other side will try to question the reliability or character of you and your witnesses and point out the negative aspects of your case.
Judges are experienced in knowing what can and cannot be included in evidence. If the judge stops you from giving certain evidence, the judge is not trying to prevent you from making out your case, but rather letting you know that what you are saying will not help your case and it would be unfair to the other party to allow that evidence. The judge would make a similar decision if the other party was trying to use such evidence. You have the right to argue your points, but at the same time it is important to listen to the judge. The judge knows the rules and the law and must ensure that both sides are treated fairly.
Evidence will only be admissible (allowed into court) if it is relevant. Evidence will be relevant where its existence tends to indicate that one of the facts in issue is more or less likely. Basically, the court will ask whether the evidence you are trying to introduce would help to decide the issue(s) before it. For example, in proving a breach of duty in a negligence claim, evidence about current financial hardship is unlikely to be relevant.
Evidence can either be:
- directly relevant, where it includes an observation, perception or description of a fact in issue; or
- circumstantially relevant, where the Judge or jury can use it to draw an inference which goes towards proving a fact in issue. Things like a person's past habits or the existence of a motive can often be used as circumstantial evidence.
Witness testimonies
Generally speaking, you are able to have anyone you wish appear as a witness in a court proceeding. You are also free to determine the order in which these witnesses appear. In calling witnesses, however, you will need to bear in mind the requirement that any evidence they present must be relevant. You should also note the possibility that certain evidence cannot be presented on account of various exclusionary rules discussed above.
All witnesses should be served with a court document known as a subpoena. A subpoena compels the person named in the subpoena to appear in court. This document must be filed in the court registry. If a person fails to comply with a subpoena they may be held in contempt of court (an offence for which they could be imprisoned).
Each witness called may also be entitled to some conduct money to ensure they have sufficient funds to travel to court and appear in court when required.
Things to remember
In order to prove your case, your evidence has to be believed. If you say one thing and the other party contradicts what you say, then the judge (or jury) has to decide which version he or she accepts. The judge will make the decision on the basis of all of the evidence and his or her assessment of the character of each witness. The solicitor or barrister for the other side will try to question the reliability or character of you and your witnesses and point out the negative aspects of your case.
Judges are experienced in knowing what can and cannot be included in evidence. If the judge stops you from giving certain evidence, the judge is not trying to prevent you from making out your case, but rather letting you know that what you are saying will not help your case and it would be unfair to the other party to allow that evidence. The judge would make a similar decision if the other party was trying to use such evidence. You have the right to argue your points, but at the same time it is important to listen to the judge. The judge knows the rules and the law and must ensure that both sides are treated fairly.
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