CPPSEC3009 Prepare and present evidence in court
Unit descriptor
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ELEMENT PERFORMANCE CRITERIA
1 Gather and organise evidence.
1.1 Applicable provisions of legislative and organisational requirements relevant to the preparation and presentation of evidence are identified and complied with.
1.2 A summary of the case history and other relevant information is gathered and organised.
1.3 Information to be used as evidence is confirmed for reliability and relevance in accordance with organisational procedures.
1.4 Evidence is organised in accordance with evidence management principles.
2 Prepare for court proceedings.
2.1 Briefing sessions are held with relevant persons to confirm court arrangements, role and involvement.
2.2 Information to be presented as evidence and negotiation parameters is discussed with relevant persons.
2.3 Briefs of evidence are submitted in a logical sequence appropriate to jurisdictional requirements and comply with the relevant rules of evidence.
2.4 Material to be used or referred to in court proceedings is thoroughly reviewed prior to presentation in court to ensure familiarity, completeness and availability.
2.5 Documentation and exhibits are prepared to ensure their acceptability for use in court in accordance with procedural requirements.
3 Present evidence.
3.1 Rules of evidence, procedures and protocols relevant to the jurisdiction involved are observed and adhered to throughout proceedings.
3.2 Personal presentation, manner and language are consistent with court protocols.
3.3 Evidence is admissible and presented in a clear, concise and unambiguous manner and complies with rules of evidence.
3.4 Specialist opinion within own level of qualification and expertise is provided on request in accordance with organisational procedures.
3.5 Outcomes of proceedings and associated documentation and evidence are noted, filed and stored in accordance with legislative requirements.
Investigators involved at any stage of surveillance, audit or investigation may be required to gather evidence in order to provide proof of a contravention of a rule, regulation or law. In the process of gathering evidence, they will handle various articles that may be required as evidence (in the form of exhibits) in
various proceedings. These articles may consist of documents or equipment components, electronic or documentary records or other material. It is important
that the integrity of these potential exhibits be preserved.
During a routine surveillance, audit or investigation, Investigators may not be aware of any future developments that may lead to prosecution or other actions where evidence may be required. The failure to be aware of the correct procedures when gathering evidence may seriously jeopardise any future enforcement action.
The matter of evidence is extremely complex and cannot be adequately covered in a single module. This section should provide sufficient information to assist investigators in their routine tasks. Inevitably, situations will arise which require additional explanation. If investigators are confronted with a situation which they feel is not encompassed by the information provided here, they should seek further advice from a legal advisor (either an investigator or legal counsel) available to their organisation.
Definitions
Evidence Evidence consists of facts, testimony, hearsay and exhibits which a court or tribunal will receive to prove or disprove a matter under inquiry.
Types of Evidence There are several different types of evidence:
Evidence can be direct or circumstantial:
Direct Evidence Evidence of something that has been directly perceived by a witness through one or more of his or her five senses—for example, has been seen, heard, smelled, felt or tasted. Direct evidence is given by the witness in oral testimony in court.
Circumstantial Evidence Evidence from which a fact may be inferred as a natural or probable conclusion. It is usually made up of a series of items which point to the same conclusion.
In an investigation the main sources of evidence are:
• oral evidence (personal recollections)
• documentary evidence (records)
• expert evidence (technical advice), and
• evidence from a site inspection.
Forensic evidence Depending on the nature of the allegations and the nature of the evidence that you obtain during an investigation, that evidence may take on the character of forensic evidence at a later stage. In this context, ‘forensic evidence’ does not refer to forensic medicine but is the technical term for evidence used in, or connected with, a court of law or a tribunal. and Handling Real Evidence Material objects, other than documents, which are produced for inspection by a court, are commonly called real evidence. This, when available, is probably the most satisfactory kind of evidence because it generally does not require testimony or inference. Unless its genuineness is in dispute, the thing speaks for itself.
Documentary Evidence There are two types of documentary evidence:
primary documentary evidence, that is, the production of the original document itself; and
secondary documentary evidence, that is, the production of a copy of the original document—for example, photocopy or certified copy, etc. It can generally only be produced after it has been shown to the court that the original is either lost or destroyed, or that it is impracticable to produce the original
document.
Expert Evidence Testimony presented by an expert witness. Such evidence is only accepted when it is in the witness’s field of expertise. The witness must first prove to the satisfaction of the court that he or she is qualified in that field—for example, a doctor giving evidence of a medical matter or a pilot giving evidence of the ramifications of low flying.
Hearsay Evidence Evidence of something of which the witness does not have direct knowledge but has been told about it by some other person. Under normal circumstances, hearsay evidence is not admissible in a court as evidence of the truth of what was said. It may be admissible in a coronial inquiry or the Administrative Appeals Tribunal.
There are numerous exceptions to the inadmissibility of hearsay evidence. Most of these do not require explanation here. However, there are two
important exceptions.
A person may give evidence of what was said to him or her by the defendant. If the conversation being related was held in the presence and hearing of the defendant, it may be admissible.
Law of Evidence The law of evidence governs the means and manner in which a person may substantiate his or her own case, or refute his or her opponent’s case.
Rules of Evidence The rules of evidence are the rules that regulate the manner in which questions of fact may be determined in judicial proceedings. The aim of most court proceedings is to determine two different types of issues. First, a court has to determine whether the facts on which a charge is laid did actually happen. These are questions of fact. Second, the court has to determine, if they did happen, what their legal consequence is. These are questions of law.
The rules of evidence are generally divided into three parts.
· What facts may or may not be proved?
· What sort of evidence must be given by which a fact may be proved?
· By whom, and in what manner, must the evidence be produced by which a fact is to be proved?
Applicability of the rules of evidence A basic understanding of the rules of evidence is useful for an investigator. As noted above, the allegations made in a
complaint may in some circumstances ultimately become the subject of legal proceedings. Another reason for you to have a general familiarity with the main
rules of evidence is that, even if these rules do not apply to your investigation, they are based on principles that can assist your investigation by directing you to the best evidence.
For any evidence, the most fundamental consideration is relevance. There must be some logical connection between the evidence and the facts at issue. The test of relevance is equally applicable to inquisitorial proceedings (such as investigations) as to court proceedings. However, where the rules of evidence
apply, even evidence that is relevant may be inadmissible in proceedings. Two of the more important rules of exclusionary evidence are hearsay evidence
and opinion evidence.
Hearsay evidence There is a general rule against hearsay evidence, but there are a number of exceptions to this rule. A dictionary definition of hearsay evidence is ‘evidence based on what has been reported to a witness by others, rather than what he or she has heard himself or herself’. For example, a witness who states ‘I was talking to Bill and he told me that he saw Mary take the money’ is giving hearsay evidence.
Hearsay should not be totally discounted by an investigator. It can be a useful source of leads to other relevant witnesses. The importance of the rule against hearsay is that it alerts investigators to the need to go to the source itself, rather than rely on what others say. Putting this another way, hearsay evidence carries less weight than direct evidence; whenever the primary source is available, you should use it in preference to hearsay evidence.
It is important to note that the rule against hearsay applies only where the rules of evidence apply. Nevertheless, in all situations investigators should make every effort to track down and get direct evidence. If this is not possible (for example, because the source of the direct evidence refuses to be interviewed) then your report should record this.
Investigators should be aware that one of the primary exceptions to the rule against hearsay is statements made by alleged wrongdoers where they admit their wrongdoing. The reason for this lies in an assumption that people don’t tend to make damaging confessions against their self-interest.
Opinion evidence As the investigator, you have the task of finding out what happened and why. A witness’s opinions about a person, or about what happened or should have happened, are irrelevant to your inquiry. Therefore, as a general rule, a witness interview should not contain expressions of opinion about something or someone unless the witness is an expert who has been asked to provide an expert opinion. Get the person to describe in detail what they actually perceived.
As with hearsay evidence, there are exceptions to the general rule: opinion evidence may be admissible if it is based on what a person saw, heard or otherwise perceived, and it is necessary to convey an adequate understanding of the witness’s perception of the matter. Similarly, where witnesses have acquired considerable practical knowledge about a matter through life experience, they may be able to express an opinion about that matter even if they are not an expert.
The Commonwealth Evidence Act 1995 http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/
The Queensland Evidence Act 1977 http://www.austlii.edu.au/au/legis/qld/consol_act/ea197780/
The NSW Evidence Act 1995 http://www.austlii.edu.au/au/legis/nsw/consol_act/ea199580/
The Victorian Evidence Act 2008 http://www.austlii.edu.au/au/legis/vic/consol_act/ea200880/
The Tasmanian Evidence Act 2001 http://www.austlii.edu.au/au/legis/tas/consol_act/ea200180/
The SA Evidence Act 1929 http://www.austlii.edu.au/au/legis/sa/consol_act/ea192980/
The WA Evidence Act 1906 http://www.austlii.edu.au/au/legis/wa/consol_act/ea190680/
The NT Evidence Act http://www.austlii.edu.au/au/legis/nt/consol_act/ea80/
1 Gather and organise evidence.
1.1 Applicable provisions of legislative and organisational requirements relevant to the preparation and presentation of evidence are identified and complied with.
1.2 A summary of the case history and other relevant information is gathered and organised.
1.3 Information to be used as evidence is confirmed for reliability and relevance in accordance with organisational procedures.
1.4 Evidence is organised in accordance with evidence management principles.
2 Prepare for court proceedings.
2.1 Briefing sessions are held with relevant persons to confirm court arrangements, role and involvement.
2.2 Information to be presented as evidence and negotiation parameters is discussed with relevant persons.
2.3 Briefs of evidence are submitted in a logical sequence appropriate to jurisdictional requirements and comply with the relevant rules of evidence.
2.4 Material to be used or referred to in court proceedings is thoroughly reviewed prior to presentation in court to ensure familiarity, completeness and availability.
2.5 Documentation and exhibits are prepared to ensure their acceptability for use in court in accordance with procedural requirements.
3 Present evidence.
3.1 Rules of evidence, procedures and protocols relevant to the jurisdiction involved are observed and adhered to throughout proceedings.
3.2 Personal presentation, manner and language are consistent with court protocols.
3.3 Evidence is admissible and presented in a clear, concise and unambiguous manner and complies with rules of evidence.
3.4 Specialist opinion within own level of qualification and expertise is provided on request in accordance with organisational procedures.
3.5 Outcomes of proceedings and associated documentation and evidence are noted, filed and stored in accordance with legislative requirements.
Investigators involved at any stage of surveillance, audit or investigation may be required to gather evidence in order to provide proof of a contravention of a rule, regulation or law. In the process of gathering evidence, they will handle various articles that may be required as evidence (in the form of exhibits) in
various proceedings. These articles may consist of documents or equipment components, electronic or documentary records or other material. It is important
that the integrity of these potential exhibits be preserved.
During a routine surveillance, audit or investigation, Investigators may not be aware of any future developments that may lead to prosecution or other actions where evidence may be required. The failure to be aware of the correct procedures when gathering evidence may seriously jeopardise any future enforcement action.
The matter of evidence is extremely complex and cannot be adequately covered in a single module. This section should provide sufficient information to assist investigators in their routine tasks. Inevitably, situations will arise which require additional explanation. If investigators are confronted with a situation which they feel is not encompassed by the information provided here, they should seek further advice from a legal advisor (either an investigator or legal counsel) available to their organisation.
Definitions
Evidence Evidence consists of facts, testimony, hearsay and exhibits which a court or tribunal will receive to prove or disprove a matter under inquiry.
Types of Evidence There are several different types of evidence:
Evidence can be direct or circumstantial:
Direct Evidence Evidence of something that has been directly perceived by a witness through one or more of his or her five senses—for example, has been seen, heard, smelled, felt or tasted. Direct evidence is given by the witness in oral testimony in court.
Circumstantial Evidence Evidence from which a fact may be inferred as a natural or probable conclusion. It is usually made up of a series of items which point to the same conclusion.
In an investigation the main sources of evidence are:
• oral evidence (personal recollections)
• documentary evidence (records)
• expert evidence (technical advice), and
• evidence from a site inspection.
Forensic evidence Depending on the nature of the allegations and the nature of the evidence that you obtain during an investigation, that evidence may take on the character of forensic evidence at a later stage. In this context, ‘forensic evidence’ does not refer to forensic medicine but is the technical term for evidence used in, or connected with, a court of law or a tribunal. and Handling Real Evidence Material objects, other than documents, which are produced for inspection by a court, are commonly called real evidence. This, when available, is probably the most satisfactory kind of evidence because it generally does not require testimony or inference. Unless its genuineness is in dispute, the thing speaks for itself.
Documentary Evidence There are two types of documentary evidence:
primary documentary evidence, that is, the production of the original document itself; and
secondary documentary evidence, that is, the production of a copy of the original document—for example, photocopy or certified copy, etc. It can generally only be produced after it has been shown to the court that the original is either lost or destroyed, or that it is impracticable to produce the original
document.
Expert Evidence Testimony presented by an expert witness. Such evidence is only accepted when it is in the witness’s field of expertise. The witness must first prove to the satisfaction of the court that he or she is qualified in that field—for example, a doctor giving evidence of a medical matter or a pilot giving evidence of the ramifications of low flying.
Hearsay Evidence Evidence of something of which the witness does not have direct knowledge but has been told about it by some other person. Under normal circumstances, hearsay evidence is not admissible in a court as evidence of the truth of what was said. It may be admissible in a coronial inquiry or the Administrative Appeals Tribunal.
There are numerous exceptions to the inadmissibility of hearsay evidence. Most of these do not require explanation here. However, there are two
important exceptions.
A person may give evidence of what was said to him or her by the defendant. If the conversation being related was held in the presence and hearing of the defendant, it may be admissible.
Law of Evidence The law of evidence governs the means and manner in which a person may substantiate his or her own case, or refute his or her opponent’s case.
Rules of Evidence The rules of evidence are the rules that regulate the manner in which questions of fact may be determined in judicial proceedings. The aim of most court proceedings is to determine two different types of issues. First, a court has to determine whether the facts on which a charge is laid did actually happen. These are questions of fact. Second, the court has to determine, if they did happen, what their legal consequence is. These are questions of law.
The rules of evidence are generally divided into three parts.
· What facts may or may not be proved?
· What sort of evidence must be given by which a fact may be proved?
· By whom, and in what manner, must the evidence be produced by which a fact is to be proved?
Applicability of the rules of evidence A basic understanding of the rules of evidence is useful for an investigator. As noted above, the allegations made in a
complaint may in some circumstances ultimately become the subject of legal proceedings. Another reason for you to have a general familiarity with the main
rules of evidence is that, even if these rules do not apply to your investigation, they are based on principles that can assist your investigation by directing you to the best evidence.
For any evidence, the most fundamental consideration is relevance. There must be some logical connection between the evidence and the facts at issue. The test of relevance is equally applicable to inquisitorial proceedings (such as investigations) as to court proceedings. However, where the rules of evidence
apply, even evidence that is relevant may be inadmissible in proceedings. Two of the more important rules of exclusionary evidence are hearsay evidence
and opinion evidence.
Hearsay evidence There is a general rule against hearsay evidence, but there are a number of exceptions to this rule. A dictionary definition of hearsay evidence is ‘evidence based on what has been reported to a witness by others, rather than what he or she has heard himself or herself’. For example, a witness who states ‘I was talking to Bill and he told me that he saw Mary take the money’ is giving hearsay evidence.
Hearsay should not be totally discounted by an investigator. It can be a useful source of leads to other relevant witnesses. The importance of the rule against hearsay is that it alerts investigators to the need to go to the source itself, rather than rely on what others say. Putting this another way, hearsay evidence carries less weight than direct evidence; whenever the primary source is available, you should use it in preference to hearsay evidence.
It is important to note that the rule against hearsay applies only where the rules of evidence apply. Nevertheless, in all situations investigators should make every effort to track down and get direct evidence. If this is not possible (for example, because the source of the direct evidence refuses to be interviewed) then your report should record this.
Investigators should be aware that one of the primary exceptions to the rule against hearsay is statements made by alleged wrongdoers where they admit their wrongdoing. The reason for this lies in an assumption that people don’t tend to make damaging confessions against their self-interest.
Opinion evidence As the investigator, you have the task of finding out what happened and why. A witness’s opinions about a person, or about what happened or should have happened, are irrelevant to your inquiry. Therefore, as a general rule, a witness interview should not contain expressions of opinion about something or someone unless the witness is an expert who has been asked to provide an expert opinion. Get the person to describe in detail what they actually perceived.
As with hearsay evidence, there are exceptions to the general rule: opinion evidence may be admissible if it is based on what a person saw, heard or otherwise perceived, and it is necessary to convey an adequate understanding of the witness’s perception of the matter. Similarly, where witnesses have acquired considerable practical knowledge about a matter through life experience, they may be able to express an opinion about that matter even if they are not an expert.
The Commonwealth Evidence Act 1995 http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/
The Queensland Evidence Act 1977 http://www.austlii.edu.au/au/legis/qld/consol_act/ea197780/
The NSW Evidence Act 1995 http://www.austlii.edu.au/au/legis/nsw/consol_act/ea199580/
The Victorian Evidence Act 2008 http://www.austlii.edu.au/au/legis/vic/consol_act/ea200880/
The Tasmanian Evidence Act 2001 http://www.austlii.edu.au/au/legis/tas/consol_act/ea200180/
The SA Evidence Act 1929 http://www.austlii.edu.au/au/legis/sa/consol_act/ea192980/
The WA Evidence Act 1906 http://www.austlii.edu.au/au/legis/wa/consol_act/ea190680/
The NT Evidence Act http://www.austlii.edu.au/au/legis/nt/consol_act/ea80/