CQUniversity
Division of Higher Education
School of Business and Law
LAWS13010
Evidence and Proof
Week 6 Documentary and Real Evidence
Term 3
© CQUniversity
1
Table of Contents
1.0
Preview ............................................................................................. 3
1.1 Objectives ......................................................................................... 3
1.2 Introduction..................................................................................... 3
1.3 Prescribed Reading ..........................................................................4
1.4 Reference Reading ...........................................................................4
1.5 Key Terms ........................................................................................ 5
2.0 The meaning of “document” ............................................................. 6
3.0 Documentary Evidence and Hearsay................................................ 7
4.0 Constraints on Documentary Evidence ............................................ 7
5.0 Common Law Rules for Documents ................................................ 8
6.0 Statutory Rules for Documents ........................................................ 9
7.0 Rules for Specific Types of Document .............................................11
7.1 Photographs ..................................................................................11
7.2 Audio recordings ........................................................................... 12
7.3 Computer generated evidence ....................................................... 13
7.4 Business documents ...................................................................... 13
7.5 DNA evidence ................................................................................ 14
8.0 Documents of Legal Effect .............................................................. 14
9.0 Real Evidence ................................................................................. 16
9.1 Demeanour of the witness ............................................................. 16
9.2 Exhibits ......................................................................................... 17
9.3 Demonstrations ............................................................................. 18
9.4 Views ............................................................................................. 19
10.0
Tutorial Questions ....................................................................... 21
11.0
Debrief ......................................................................................... 22
2
Topic 6 - Documentary and Real Evidence
1.0
Preview
1.1 Objectives
At the end of Topic 6, you should be able to:







describe the major forms of documentary evidence;
describe the relationship between documentary evidence and hearsay evidence;
outline the statutory rules for the use of documents in Queensland;
identify the importance of authenticating documents, and how this may be
accomplished;
outline the circumstances in which exhibits may be used;
discuss the nature of courtroom demonstrations, and whether they are useful or mere
drama; and
outline the process of a view, and the limitations on what may be learned during a
view.
1.2 Introduction
Over the last couple of weeks we learned that oral evidence is the “gold standard” of evidence
in our legal system. However oral evidence is by no means the only form of evidence which
may be placed before a court. This week, we consider the other two key forms of evidence:
Documentary evidence, and “Real” evidence.
When one mentions “documentary” evidence, one immediately thinks of long-winded,
complicated legal documents; or statutory declarations and affidavits. And, indeed, these are
documentary evidence. However documentary evidence is much broader than ink on paper.
Computer records, photographs, business files, film footage, even labels can constitute
documentary evidence.
There is a lingering popular view that documentary evidence is extremely powerful. You will
almost certainly have heard people say “Oh, but I’ve got documentary proof! It’s right here
in black and white!” Indeed, documentary evidence can be a particularly compelling form of
evidence - however its use can be complicated, and documentary evidence faces some
distinct disadvantages compared to oral evidence. This week, we will examine some of those
complications and disadvantages, so that you will be able to confidently use documentary
evidence, within its limitations.
3
Real evidence represents the final category of evidence we will discuss in this course. “Real”
comes from the latin word res, meaning “thing”. Consequently, real evidence are things
which the court may see or experience for itself. Real evidence, even more than
documentary evidence, can be problematic. From time to time it can be a powerful and
useful form of evidence; however more often than not, real evidence will be mere courtroom
drama; there are usually better ways for you, as an advocate, to make your point. This week
we will look at real evidence; at its uses and limitations.
This topic will conclude our discussion of the types of evidence and the manner in which
evidence may be presented to the court. For the rest of the course, we will focus on the
admissibility rules which determine whether evidence - regardless of its form - may be put
before the court.
1.3 Prescribed Reading

David Field, Queensland Evidence Law (2nd ed, 2011):
o
Chapter 10 (Hearsay Under Queensland Statute)
1.4 Reference Reading
Secondary material
Note that Cooper and Lester are American articles so the law does not precisely reflect
Queensland law. The laws and concepts are, however, similar enough for the articles to be
instructive.



Mary Cooper, ‘The Use of Demonstrative Exhibits at Trial’ (1999) 34 Tulsa Law
Journal 567
H Fryberg, ‘Discovery and Proof of Computer-Based Evidence in Civil Trials in
Queensland’ (2009) Paper delivered as part of the Queensland/Chinese Courts
Seminar, May 2009
Geoffrey Lester, ‘Tendering a View and a Demonstration on a View in Evidence’
(1997) 19 Advocates’ Quarterly 345
Cases
Armory v Delamarie (1795) 93 ER 664. A famous property case. Chimneysweep found a
jewel and took it for valuation. The stones were stolen. The court called for the empty
4
setting to be produced in court to assist valuation of damages.
http://www.commonlii.org/uk/cases/EngR/1795/325.pdf
Butera v DPP (1987) 164 CLR 180. A covert tape recording was admitted in evidence.
Court noted that generally when the audio was understandable, a transcript was not
admissible. In this case, the audio was not in English so a translated transcript was perfectly
acceptable. http://www.austlii.edu.au/au/cases/cth/HCA/1987/58.html
Carolan v Cohen [2011] QDC 103. An example of the operation of the Queensland
provisions for certifying computer-generated documents. A computer record of the service
of notices for traffic offences was properly certified and was properly admitted.
http://www.austlii.edu.au/au/cases/qld/QDC/2011/103.html
GIO v Bailey (1992) 27 NSWLR 34. Judge observed the physical difficulties of a witness
moving within the courtroom, and took these observations into account while assessing
damages.
Kozul v The Queen (1981) 147 CLR 221. The jury was given the murder weapon (a
handgun) to play with and test the trigger pressure. Question of whether experiments to see
the strength of a knock, required to fire the mechanism, were allowable. Found that the jury
was entitled to observe the weapon, including by testing the trigger pressures.
http://www.austlii.edu.au/au/cases/cth/HCA/1981/19.html
Scott v Numurkah Corporation (1954) 91 CLR 300. Judge visited the scene of the
dispute on his own time and made some observations, which he then reflected on in court.
The observations amounted to experimentation, which was improper.
http://www.austlii.edu.au/au/cases/cth/HCA/1981/19.html
Shu-Ling v The Queen (1989) 1 AC 270. Accused was properly cautioned, but made a
confession of murder and then reconstructed the crime in the original location, on video. No
compulsion, no attempt to interfere. Held to be admissible as a demonstration and thus as
real evidence.
1.5 Key Terms
Books of Account: Business records prepared in accordance with good accounting
practice in order to authoritatively record the business activities of a company, firm or
enterprise.
Demonstration: Conduct undertaken after the event, in an effort to substantially replicate
facts in issue, for the information of the court.
Document: Any medium on which data can be stored for later retrieval.
5
Real Evidence: Evidence which the court can examine using its own five senses, rather
than relying on the observations of witnesses.
View: A view occurs when the court undertakes an excursion away from the courtroom, to
view some scene or item relevant to a fact in issue. At common law, a view is not evidence; it
is merely a guide to assist the court to understand the evidence.
2.0
The meaning of “document”
“Document” is one of those words which has a rather different meaning in its legal context,
than when it is used in general conversation.
As indicated in the introduction, to most people a “document” is something, usually paper,
with writing upon it. In the legal context, the definition is much, much broader,
encompassing any medium upon data is stored, and from which the data can be retrieved
(including by the use of equipment). So, in this sense, a piece of paper with writing is a
document; a piece of paper with braille is a document; a microfiche sheet is a document; a
photograph is a document; a computer disk is a document; a CD is a document; a label on
the side of a bottle is a document.
In Queensland, there are two definitions of “document” available. The key one (and the
broader one) is found in the dictionary of the Evidence Act 1977 (Qld). It states:
document includes, in addition to a document in writing—
(a)
any part of a document in writing or of any other document as defined
herein; and
(b)
any book, map, plan, graph or drawing; and
(c)
any photograph; and
(d)
any label, marking or other writing which identifies or describes anything of
which it forms part, or to which it is attached by any means whatever; and
(e)
any disc, tape, soundtrack or other device in which sounds or other data (not
being visual images) are embodied so as to be capable (with or without the aid
of some other equipment) of being reproduced therefrom; and
(f)
any film, negative, tape or other device in which 1 or more visual images are
embodied so as to be capable (with or without the aid of some other
equipment) of being reproduced therefrom; and
(g)
any other record of information whatever.
Subparagraph (g), in particular, seems extraordinarily broad - but perhaps it has to be, in an
age in which the methods of collection, storage and retrieval of data is evolving so quickly.
Just a few years ago, the notion of a device the size of a pencil eraser, able to hold 32GB of
data, would have been fanciful. Now, with the advent of cloud computing, normal users of
data may never need to personally store data at all … and data systems will continue to
6
evolve. A student reading those notes in as little as 5 years time will no doubt consider cloud
storage to be quaint and antique.
The result of this broad definition is that when considering documentary evidence, we must
not be trapped into thinking of particular physical items as “documents”.
3.0
Documentary Evidence and Hearsay
During the next three weeks - Topics 7, 8 and 9 - you will become heartily sick of hearing
about hearsay. Hearsay evidence, in short, is evidence about a statement made outside the
court room, by someone other than the person who made the original statement.
I know that sounds like gobbledegook. Bear with me.
If Tamara is a witness in court, and she says “I saw Dave steal the stereo” that is direct oral
evidence.
If, however, Caroline is a witness in court and she says “Tamara told me she saw Dave steal
the stereo” that is hearsay. All Caroline is really doing is reporting a description of the facts,
that was given before the case.
With me so far? Now let’s apply it to documents. In this case, let’s say Tamara wrote down
that she saw Dave steal the stereo. Then, instead of calling Tamara to give evidence, the
prosecution simply handed up the document. Isn’t this really the same thing as Caroline’s
hearsay evidence? In each case, the court receives a report of things that were said prior to
the case, rather than receiving the evidence itself.
On this basis, you can see that virtually all documents are hearsay evidence - because in each
case, the preferable method, the gold standard, would be to bring the maker of the document
before the court. Once in court, they could give direct testimony, rather than forcing the
court to rely on a mere document.
Having said all of this, there are some occasions on which documentary evidence can be very
useful. The common law, and now in Queensland the Evidence Act, have evolved a set of
rules to allow documentary evidence to be tendered, where the use of documentary evidence
would assist rather than hindering justice.
Before we go on - if you have just read that section three times and it is still not making
sense, please don’t stress. Over the next three weeks, you will come to know hearsay very
well, at which time “documents are hearsay” will make much more sense. If you need to just
take it on faith at the moment that documents are hearsay, that’s AOK.
4.0
Constraints on Documentary Evidence
Why would a litigant wish to use documentary evidence? And why might a court wish to
consider it? Compared to oral evidence, documentary evidence has a couple of very distinct
advantage.
First, documents tend to be constructed far more carefully than oral evidence. A witness
preparing a document is not under the pressure of appearing in front of a courtroom. They
7
can take as much time as they please. They can weigh their words carefully, and ensure that
they do not, as a result of nervous circumstances, say something they do not quite mean. For
the litigant, this provides the advantage of absolute certainty, before the case, about the
evidence which each witness will present. For the court, this provides a body of (hopefully)
coherent, well-constructed evidence which can be used in determining the outcome.
Second, and perhaps more importantly, documentary evidence can defeat what we described
in earlier weeks as the “limits of memory.” A document written at, or close to the time of an
incident, will be written before the witness’ memory has the chance to degrade with time;
and, of course, once the document is written, the document itself is unlikely to degrade.
Set against these practical advantages, however, are some distinct disadvantages.
First and foremost, there is no way of knowing for sure whether a document was actually
prepared by the witness who takes responsibility for it. If, for instance, a witness were to sit
with their legal representative, carefully weighing every word, it is likely that the “ghost
writing” by the lawyer would substantially affect the evidence the witness might otherwise
give. One might in fact argue that part of the value of oral evidence is that it must be given
by the witness themselves, in the witness box, without the assistance of others.
Second, if the courts were to allow documentary evidence in preference to oral evidence, then
we would quickly reach the point where nobody gave oral evidence. Why, as a lawyer, would
you proof a witness and hope for the best in court, when you could sit with the witness and
guide them word-for-word through the preparation of documentary evidence?
Finally, and most importantly, when we discussed oral evidence, one of the key advantages
of oral evidence was that it gave the opposing side an opportunity to cross-examine. The
ability to cross-examine, to test the evidence against you, is fundamental for justice.
However, one can’t very well cross-examine a document. this means that by presenting
evidence in documentary form, a party can potentially protect weak evidence from the
rigours of cross-examination.
The rules of evidence relating to documents have been developed in order to allow the use of
documentary evidence in appropriate circumstances, while restricting their use so that they
do not supplant oral evidence, and do not provide parties with a means of avoiding exposure
to cross-examination.
5.0
Common Law Rules for Documents
The rules of evidence relating to documents are something of a rarity in Queensland
evidence law, because they are laid down principally by statute, in the Evidence Act 1977
(Qld). However, in order to understand the basis of the statutory rules, it is helpful to have
an appreciation of the older, common law rules.
The first rule for the use of documentary evidence was that in order to be admitted at all, the
document had to fall under one of the “hearsay objections” which we will learn about in
coming weeks. For example, if the document recorded a person’s confession to a crime, it
might be admissible. If the document was res gestae, that is, “part of the action”, then it
might be admissible. In short, documents were not considered to be special cases of hearsay;
they had to meet the same admissibility requirements as oral hearsay.
8
Next, the original document had to be tendered wherever possible, unless its absence could
be explained and excused; or unless the parties in a civil case had agreed, between
themselves, that a particular copy was to be regarded as the original. The reasons (in the
past) for this rule are rather obvious - in the days before the (relatively recent) introduction
of copying technology, there was no way to be sure that a copy of the document accurately
reflected the original.
Third, even if the document was admitted into evidence, its uses might be limited to that
specific hearsay purpose. If, for instance, a document was admitted as a confession by a
person, and in the course of the document they also made statements about the involvement
of other persons, the document could not be used as evidence against those third parties.
Finally, the authenticity of documents cannot stand alone. In order for a document to be
admitted into evidence, it was necessary for a person, in evidence, to “vouch for” that
document, or to adopt the document as being their own evidence. In this way, the court
could inquire (through the witness) about the circumstances in which the document came to
be prepared, in order to determine whether the document should be admitted, and what
weight it should be given.
Of course, this final point still further begs the question: if one must produce a witness to
adopt the document, then why bother with the document at all? In most cases, any witness
in a position to adopt the document, would also be in a position to give the evidence directly.
6.0
Statutory Rules for Documents
In Queensland, the Evidence Act has now clarified the requirements for documents to be
admitted to evidence. Under s 92 of the Act (for civil cases), there are several steps to
consider.
First, the content of the evidence must be admissible. In other words, if it would not be
admissible for a witness to stand in the court and give the evidence orally, it will not be
possible to “sneak in” the evidence in documentary form.
Next, documents are divided into two types. The first type, is a document where the maker
of the document had personal knowledge of the matters dealt with in the document. Thus
the document forms a record of the person’s own recollections or observations. In this case,
the document will be admissible, but only if the person is also going to be called as a witness.
This seems a sensible rule, because it allows the court to take advantage of the benefits of
documentary evidence (in particular in cases where the document was prepared very close to
the events recorded) but still gives the other side the opportunity to cross-examine. From a
practical perspective, the exposure of the witness to cross-examination is also likely to
restrain lawyers from “ghost writing” statements too far; if they do so, the witness may
simply not be able to sustain the statement under cross examination, and their credibility
will suffer dreadfully.
The second type of document must meet three conditions:

it must relate to “any undertaking”;
9


it must have been made in the course of that undertaking by a person with reasonable
knowledge of the contents; and
the person who made the document must be called as a witness.
Consequently, for instance a set of Minutes from a club or association meeting might be
admissible. They relate to an undertaking, they were made in the course of the undertaking
by a person who had personal knowledge of what occurred at the meeting; all that remains is
to ensure the secretary is called as a witness.
Again, this seems a very sensible rule. Rather than forcing the club secretary to rely on their
memory of the meeting, why not admit the Minutes - provided the club secretary is then
available for cross-examination by the other party.
Next, the statutory provisions nominate a list of circumstances in which documentary
evidence of the first type - personal observations - can be admitted even if the witness is not
available. These are generally in circumstances in which the original witness has died,
cannot be located, cannot be expected to recollect the events in question, or when the
difficulty and expense of securing the witness would outweigh their value as a witness. In
those cases, the parliament seems to have formed the practical conclusion that documentary
evidence is better than no evidence at all; however the provisions are written so as to prevent
parties from “protecting” their witnesses from cross-examination (the rules are stringent)
and one would expect the judge to apply less weight to evidence where cross-examination
has not been possible.
Slightly tighter rules are in place for criminal trials, under s 93 of the Evidence Act (Qld).
There are three key differences.
First, the first type of document identified above (personal observations) are not admissible
in a criminal matter. The witness must show up and give evidence for themselves.
Second, the second type of evidence - relating to an undertaking - is tightened in criminal
cases so that the evidence must relate to “trade or business.”
Third, documentary evidence relating to trade or business may only be used when the
witnesses is unavailable or cannot reasonably be expected to recall the circumstances. The
time and expense and inconvenience of calling the witness are not factors.
These tighter rules seem entirely appropriate, given that in a criminal case the accused
person is facing criminal sanctions.
Activity
A lawyer seeks to introduce, in evidence, a coffee mug bearing the words “World’s Best Dad”
which was given to a defendant by his children. Under what circumstances might this be a
document?
a) If introduced in an attempt to show that the defendant drank a cup of coffee on the
morning of the offence;
10
b) If introduced as part of “relationship evidence” to show that the defendant has a good
relationship with his children;
c) If introduced in order to claim that the defendant is the world’s best dad;
d) If introduced because the coffee mug is allegedly a murder weapon.
Answer: The coffee mug would be a document in (c) and might possibly be a document in
(b) if the words on the mug were intended to prove that the children had a high opinion of
their father.
Which of the following are disadvantages associated with using documentary evidence?
a) It is never possible to know precisely who wrote a document;
b) Documents are always hearsay, and are not usually written under oath;
c) If documents were allowed in evidence on the same basis as oral testimony, before
long virtually all evidence would be by document;
d) Documents cannot be cross-examined.
Answer: All of the above.
7.0
Rules for Specific Types of Document
Because documents come in so many varied forms, the rules relating to documentary
evidence cannot simply be broad-brush in nature. A range of medium-specific rules have
emerged over time, to enable to courts to deal consistently with different types of document.
In this section, we look at some of the more common types of documentation which have
attracted specific rules.
7.1
Photographs
From an evidential perspective, photographs are very much like any other form of document;
the only difference is that they record data in the form of images rather than words.
Sometimes photographs can be compelling - they say, after all, that a picture tells a thousand
words - but photographs always, by their nature, show a relatively limited portion of the
overall picture.
The first rule regarding photographs is that the photographer must be available to give
evidence. That doesn’t necessarily mean they will be called - the opposing party might not
wish to test the authenticity of the photographs - but they must be available. This gives the
opposing party the chance to ask questions of a witness who, after all, was clearly at the
scene of the facts.
This rule does not exist in circumstances where there is no photographer - for instance a red
light camera or a security camera - but in those circumstances a witness must be available to
authenticate the process by which the photographs were taken.
Second, since the dawn of photography people have had the technical skill to “retouch” a
photograph or photographic negative, or to develop a photograph in a way which modifies
the original image. As a result, seeing may not be believing. Consider how many “Loch Ness
11
Monster” photographs, UFO photographs and ghost photographs have purported to show
real phenomena, yet have later been shown to be false. Consequently, a photograph which
has been modified in any way is unlikely to be admitted into evidence.
This rule becomes highly problematic in the Photoshop era. It no longer requires any great
skill to modify photographs. It would, for instance, be very easy to lighten the tone of a
photograph, to make it appear that the light was very much better than it actually was;
colours can be modified; areas of photographs can be “cut and pasted.” Even though, in this
day and age, virtually everyone carries a camera with them at all times, the evidential value
of photographs may be declining because they can no longer be relied upon as an accurate
visual record of facts in issue.
Finally, photographs can easily be misused. Graphic photographs of wounds; photographs of
people in grief; emotionally challenging material such as child pornography; might all be
shown to a jury in order to elicit an emotional reaction, which in turn might divert them
from their duty in the court. Such material would certainly be more prejudicial than
probative, and is unlikely to be admitted.
7.2 Audio recordings
An audio recording (typically, in the past, a tape recording) is a document. Its data, sounds,
can be played back to the court by means of an appropriate player. Wherever this is possible,
the audio recording itself should be played, and the playing of the audio recording actually
constitutes the delivery of the evidence.
In other words, if the audio recording is available, a mere transcript of the audio recording is
not sufficient. This makes a great deal of sense - the audio recording itself is a document, so
a transcript by definition is a document about a document about a conversation. That
immediately starts to sound unreliable.
There are other good reasons for playing the tape rather than relying on a transcript. When
the tape is played, the court has the opportunity to consider the tone of the conversation;
whether voices were raised, whether there was excitement or cool deliberation, and so on.
These things will often not be apparent from the transcript.
The rule against the use of transcripts not absolute. The case Butera v DPP is usually relied
on as authority for the proposition that where an audio recording is available, a transcript is
not admissible. That case arose from police investigations into a heroin importation ring.
Police covertly recorded conversations between Butera’s co-conspirators. The conversations
were primarily in the Punjabi language, with occasional use of other languages such as Malay
and Thai. Clearly, it would have been meaningless to simply play the tape to the jury, who
were only proficient in English. On this basis a transcript, while not the primary source of
evidence, was of considerable use to the court, and the use of the transcript was not sufficient
to support an appeal.
What about covert recordings? Under telecommunications interception legislation is
unlawful for police to record telephone calls without having an appropriate warrant.
However in general, and in person, there is little to stop an individual from recording
conversations they have with others. Permission is not required.
12
Having said this, bear in mind that at all times in criminal cases, judges have a prerogative to
dismiss evidence which is unfairly prejudicial to the accused, including evidence which, in all
the circumstances, it would be unfair to admit against the accused. If a person is “set up” to
give information which is then recorded, the recordings might well be inadmissible.
7.3 Computer generated evidence
The advent of computers has presented a massive challenge for the law in a relatively short
period of time. For those of you who are under 25, it will be difficult to imagine how
massive, and how quick the change has been.
The computer on the powerpoint slide is a Tandy TRS-80. When I was in primary school around 1980-1982, so a mere three decades ago, this computer was regarded as cutting edge.
An advanced school might own a single one of them. Virtually no households owned one. It
had 4 kilobytes of RAM, but “serious users” could upgrade it to 16 kilobytes. It did not have
a hard drive. Programs had to be loaded every time you wished to use them, from 5.25 inch
floppy disks containing about 360 kilobytes of data.
Now, three decades later, for less than one thousand dollars, one can easily buy a computer
with 4 gigabytes of RAM - one million times more powerful than the TRS80. Most
smartphones are at least 100,000 times faster than the TRS80.
Around 1990, home computers became unremarkable. In the early 1990s, home computers
began to link up with one another using dial-in servers called BBS, or “Bulletin Board
Servers”. By 1995, the internet had arrived. In less than 20 years, the internet has
fundamentally changed almost every aspect of human interaction, from commerce to love. It
is remarkable, all things considered, that the law has held up so well.
Surprisingly, evidence law has not had to develop remarkably many new rules for computerproduced evidence, primarily by insisting that parties bring computer-produced evidence
before the court in hard-copy, documentary form. The only real challenge has been
authenticating those documents, since the notion of an “original” document makes little
sense when the hardcopy document might never have been generated except for the need to
bring it in evidence.
Under s 95 of the Evidence Act 1977 (Qld), computers which are used regularly in the course
of “activities carried on … whether for profit or not, by any person” can have relevant
documentary evidence authenticated by an appropriate person certifying that the
information to be presented to the court is an accurate representation of the relevant data in
the computer. For an example of this process in action, see Carolan v Cohen [2011] QDC
103, in which the records of a person’s driving infringements, produced from the computer
systems of Queensland Police, were held to be sufficient evidence of that person’s driving
history.
7.4 Business documents
While a course like Evidence and Proof tends quite naturally to focus on criminal law, out in
the real world a massive, massive portion of the legal services delivered every day relate to
the world of trade and commerce. Trade and Commerce, of course, routinely relies on
documentation, whether paper-based or electronic. It would be almost laughable to imagine,
13
for instance, that a complicated tax case involving thousands of dollars worth of forensic
accounting, could come unstuck because of hearsay rules. A more sensible approach is
taken.
Within evidence law, business documents are essentially divided into two types: there are
general business documents, and books of account.
General business documents might be anything, from a corporate plan to an internal email
to an inter-office email to a request for tender. Any document, electronic or otherwise, might
be a general business document. These documents do not attract a special set of rules. They
must qualify as evidence in the normal manner, as described above.
Books of account, however, are those books which constitute the formal financial records of
the company. These are the records kept in accordance with good accounting procedure, and
in order to enable the company to comply with its legal responsibilities. The formal (and
much less helpful) definition in section 83 of the Evidence Act is that the term “books of
account includes any document used in the ordinary course of any undertaking to record the
financial transactions of the undertaking or to record anything acquired or otherwise dealt
with by, produced in, held for or on behalf of, or taken or lost from the undertaking and any
particulars relating to any such thing.”
The good news is that books of account, or any entries in books of account, are regarded as
evidence of the transactions they detail, provided they are authenticated by someone who
was responsible, at the relevant time, for recording the business enterprise’s activities. See
ss 84-85 of the Evidence Act 1977 (Qld). Consequently, the hearsay rule never applies to
books of account.
7.5 DNA evidence
DNA evidence has revolutionised criminal law, by providing a new, scientific was to observe
facts at the scene of a crime which are so minute that they would certainly have previously
escaped notice. A hair, a fragment of bone, or a drop of blood may be sufficient to link a
person to criminal conduct.
DNA analysis, however, requires a high level of expertise. The availability of DNA analysis
would be severely reduced if the analyst had to attend the court cases for every case they
dealt with, and answer (over and over again) questions about the manner in which they
conducted the DNA analysis.
To avoid this, the parliament has now amended the Evidence Act 1977 (Qld), with the effect
that appropriately certified DNA evidence can be presented in documentary form without
attracting the operation of the hearsay rule.
The legal arrangements are actually rather simple. The CEO of the Health Department is
entitled to authorise trained experts to be DNA analysts, and a certificate from those analysts
is regarded as evidence of the contents of the certificate. The DNA analyst must still remain
available to be called as a witness if necessary, but the document is, on its face, evidence of
its contents.
8.0
Documents of Legal Effect
14
On some occasions, the very nature of the legal dispute will require the production of
documentary evidence. In these cases, where the document is the very substance of the
dispute, hearsay rules do not apply.
For instance, if a plaintiff sues for damages arising from the breach of a contract, they must
begin by showing that a contract existed, and by showing what its terms are. It may
therefore be necessary for them to produce the documents by which the offeree
communicated acceptance; and it may be necessary to specifically identify what were the
terms of the final contract as agreed (particularly in circumstances where there were several
versions of the draft contract under negotiation. It would obviously be a nonsense for the
defendant to argue that the plaintiff must fail because the written contract, or (say) the email
communicating acceptance of the contract, were inadmissible documentary hearsay.
Similarly, the executor of an estate seeking a grant of probate will be required to produce the
original Will. It would be a nonsense for an executor to be challenged in court on the basis
that the will was merely the hearsay statement of a now-deceased person.
A final example is a suit in Defamation. A defamation plaintiff must show that the
defamatory statement (the defamatory imputation) has been published, that is, made known
to a third party. The manner of its publication, and the precise statement made by the
alleged publisher, may well be critically important in terms of identifying the harm caused,
and potentially providing the basis for any available defences. Again, it would be a nonsense
if the plaintiff was unable to bring forward the published material due to an argument that
the document constituted hearsay.
Activity
Under what circumstances might a transcript of a tape recording be used instead of playing
the recording itself?
a) if the recording is unintelligible when played;
b) if the recording is intelligible but the quality is poor and it is difficult to hear;
c) if the recording is in a language other than English; or
d) if the recording is likely to distress the jury.
Answer: The transcript might replace the document in (c). It might be used to supplement
the recording in (b). In (a), the recording might not be admitted to evidence at all, and in (d)
it will be necessary to play the recording, even at risk of distressing the jury.
Which of the following documents would not have to meet the admissibility rules for
documentary evidence?
a) A will, properly made but not properly executed;
b) A receipt for a transaction at a service station;
c) An advertising item from a newspaper;
d) A contract between the parties.
15
Answer: All of the documents other than (c) are documents of legal effect, and are therefore
admissible on their own merits.
9.0
Real Evidence
We have said - probably too many times by now - that oral evidence is evidence of those
things which a witness has perceived with their own five senses. Even documentary
evidence, untimately, are typically records of things which have been initially perceived by
people.
Real evidence breaks this pattern. The point of real evidence is that the court itself - the
judge and jury - have the direct opportunity to perceive certain facts for themselves. Real
evidence gives the court things to look at; to touch; to watch; to experience.
It will immediately be apparent that, under the right circumstances, real evidence will be
very compelling. Yet by the same token, real evidence carries an inherent danger. The facts
relevant to any case are the facts as they were at the time of the matters giving rise to the
legal dispute. If the court makes observations based on its courtroom experiences, how can
these realistically be considered more valuable than testimony from those who perceived the
events at the time?
While real evidence has a certain seductive appeal, it carries the constant risk of descending
into mere, cheap courtroom theatrics. Evidence law is alert to these risks, and has
responded by substantially constraining the ways in which real evidence can be used. The
final sections of this topic examine the four principal forms of real evidence.
9.1 Demeanour of the witness
When a witness gives evidence in court, the judge and jury learn more than simply the
content of their testimony. The judge and jury are entitled to take note of the witness’ entire
presentation in court. The witness’ manner of dress, tone of voice, mannerisms, and general
presentation are all factors which the judge and jury are entitled to take into account.
Because the judge and jury perceive these things directly, they are by definition real
evidence.
This form of real evidence can have a powerful influence. If a witness “seems evasive” this
may result in a jury giving their evidence limited credit. If they struggle with the English
language, or have a speech impediment, or have a mild intellectual disability, all of these
things will be evident to the jury, and may have an impact. If (particularly in the case of
expert witnesses) the witness speaks “over the head” of the jury using unnecessarily technical
language, this too can result in negativity from the jury and decreased credibility. All of
these things can substantially affect the outcome of the case - and there is not a single thing
the lawyers can do about it.
I am sure this underscores, yet again, the vital importance of properly proofing your
witnesses.
The use of witness demeanour is not limited to questions of credibility. The case GIO v
Bailey is a good example. In this case, Mrs Bailey was claiming payment from an insurance
company following an accident. In the courtroom, she had quite obvious difficulty sitting in
16
one place for long periods, and she moved with difficulty while taking the witness stand. The
judge observed these difficulties, and took them into account in assessing the impact of her
injuries.
How do you feel about this practice? What if, for instance, there had been a report from a
physiotherapist stating that Mrs Bailey suffered from no substantial harm, and she was
“staging” the effect of her injuries? What if she had osteoarthritis, completely unrelated to
her legal claim? What if she had pulled a hamstring while running a marathon the day
before?
Be that as it may, there was no doubt in the law - the court is entitled to observe the conduct
and demeanour of a witness, and is entitled to form views as a result.
9.2 Exhibits
Exhibits are physical items which may be brought into the courtroom, and which may even
be taken into the jury room. Members of the court may therefore touch, hold, feel, and
closely examine the physical items in question.
Three examples serve to show the utility, and the dangers, of exhibits as evidence. First, you
might remember the case Armory v Delamirie from your criminal law studies. This was the
case of a chimney sweep who, in the late 18th century, found a “jewel” and took it to a
jeweller for valuation. The jeweller removed the stones from the settings and refused to
return them. The case stands as authority that the finder of abandoned property has
possessory rights against all the world except the true owner.
It is less well known that in determining the damages for the case, the judge called for the
production, in court, of the best possible gemstones which would fit the jewell’s settings.
Unless the respondents could produce the actual stones removed from Armory’s find, the
judge proposed to assess damages according to those “best possible stones.” Quite a windfall
for Armory. The production of those “best possible stones” in the courtroom was, of course,
real evidence in the form of exhibits.
The second case is Kozul v the Queen (1981) 147 CLR 221, in which Kozul was accused of
shooting Rajkinoski with a revolver. Kozul’s defence was that he had pointed the revolver in
the direction of Rajkinoski in self-defence, with no intention of actually shooting; however
the pistol had no safety-catch, and when his hand was struck, the weapon discharged.
The pistol itself was produced in court. Several “demonstrations” were carried out, including
by the judge, to determine whether the weapon would discharge if the hand holding the
weapon was struck. The jury had access to the pistol in the jury room - it is not known, of
course, what use they put it to. Kozul was convicted, and appealed on the basis that the
“experiments” with the trigger pressure of the pistol had amounted to the production of new
evidence, rather than merely observing the pistol as an exhibit. The High Court was not
persuaded by this reasoning. Consequently it seems that while “experiments” with exhibits
are not permitted, a certain amount of physical manipulation of the exhibits is permitted.
Again, how do you feel about this? Is it reasonable for the jury to have “played around” with
the pistol to learn what circumstances might make it go off? Can we be sure the pistol, while
unloaded, would react the same as a pistol loaded with ammunition? Do we know for sure
17
whether the pistol was oiled and maintained to the same degree on each occasion? Do we
know how hard Kozul’s hand was struck? While the High Court’s decision will of course
stand, grave questions remain about whether the jury’s use of the pistol was appropriate.
Finally, we can turn to one of The United States’ most famous criminal trials of the 20th
century, in which former gridiron star OJ Simpson was tried for the murder of his wife. A
dark glove was found at the scene, and was brought into the court as an exhibit.
At the time, things were looking grim in the trial for Simpson. Public opinion had virtually
convicted him already, and while he was defended by a very strong team of lawyers, the
prosecution case looked almost overwhelming.
The prosecution, in an effort to prove the glove was Simpson’s, instructed him to try the
glove on. The judge allowed them to proceed. He attempted to put the glove on, but it was
very quickly clear to the entire court that it was far too small. Simpson’s lawyer, Jonnie
Cochrane, seized the moment with the line “If it does not fit, you must acquit.” And the jury
did.
As recently as September 2012, prosecutors in that case were arguing that the glove had been
“tampered with” by the Defence so that it would not appear to fit. Defence lawyers, in turn,
mocked the prosecutor, saying it was “the greatest legal error of the 20th century.”
One wonders why the prosecution produced the glove in evidence at all. What were they
hoping to prove? At best, they might prove that the killer had the same size hands as
Simpson. If they had evidence that other people had seen Simpson wearing those gloves; or
if the matching glove was in his dresser; then the glove might have been more important, but
in either of those cases the evidence would have come from testimony. In the end, was the
exhibit just a piece of courtroom theatre that went terribly, terribly wrong?
Before moving on from exhibits, it is important to understand how to distinguish an exhibit
from a document. The two are not always clearly identifiable, and sometimes even the court
has struggled with the distinction. Let’s take the example of a T-shirt with an offensive
slogan printed on it. On the one hand, if it is produced in court, it is a real thing, associated
with the case; it meets the definition of an exhibit. On the other hand, it has also recorded
data capable of being understood (by reading). That makes it a document. Which is it?
The answer seems to depend on the use to which the evidence is put. If the T-shirt is
brought into court because the perpetrator of an offence was wearing it at the time, and its
unusual design made it memorable to witnesses, who could then identify the offender, then it
is probably an exhibit, because the value comes from the thing itself, rather than the words
written on it. If, on the other hand, the T-shirt is introduced in order to ask the court to
reflect on the words printed on the shirt, perhaps as evocative of a public nuisance, then the
T-shirt is probably a document. So, if the purpose of introducing the item is to request that
the court consider the data recorded on the item, it is probably a document; if not, an exhibit.
9.3 Demonstrations
A demonstration occurs when some occurrence, which is alleged to have been part of the
facts in issue, is re-enacted or demonstrated for the benefit of the court. This re-enactment
might be undertaken in the courtroom, and might also be undertaken outside the courtroom.
18
There are two general types of demonstration; one very useful, and one almost never
worthwhile.
The first type of demonstration is where a witness, who is giving oral evidence, demonstrates
an action that they are also trying to describe orally. So, a witness who claims that their arm
was twisted behind their back might supplement that evidence with a demonstration, by
twisting their arm back into approximately the same position. This form of demonstration
can be very useful, because it enables the court to better understand the oral evidence of the
witness. However in this situation the primary evidence is still the oral evidence, and the
real evidence is just an aid to understanding.
There is also an argument as to whether demonstrations of this sort really are
demonstrations, or whether they are just part of “observing the witness in the witness box.”
I think they make more sense as demonstrations. In any event, they can be useful.
The second type of demonstration is where elements of the offence are re-enacted for the
benefit of the court. I struggle to see any circumstances in which this sort of demonstration
could be useful, because either (a) the re-enactment is being done with the assistance of a
witness, who could just give oral evidence instead, or (b) the re-enactment is being done on
the basis of forensic or other evidence, in which case the likelihood of error is very broad.
The biggest challenge facing re-enactments is accurate replication. Any of you who have
studied science will know that when an experiment is repeated, it must be repeated under
identical circumstances, or the results will be invalid. Any change to the environmental
conditions might well result in a different outcome. So, in a courtroom, how can the judge
and jury be sure that the demonstration being undertaken for them is an accurate
representation of the original events?
One case in which a re-enactment was used successfully was Shu-Ling v The Queen [1988] 1
AC 270, in which the defendant made what was effectively a confession on video, by reenacting the crime (manual strangulation). He was properly cautioned by police, and was
participating voluntarily. At his trial, however, he pleaded Not Guilty and sought to recant,
arguing that the confession had been obtained as a result of police oppression. The video
recording of the demonstration was admitted, but the judgment is not entirely clear whether
it was admitted as evidence of the crime or merely as evidence of the confession. In the
judgment, the court emphasised the challenges of providing a successful demonstration.
Perhaps this case is the exception that proves the rule.
9.4 Views
A “view” is an excursion by the court, to a place relevant to the trial, in order to see things for
themselves. Views usually occur when the court considers it desirable to see something too
large to be brought into the courtroom. They involve “visiting the scene of the crime.”
It will be immediately obvious that view suffer from similar dangers to courtroom
demonstrations; however the danger is perhaps even higher. The “scene of the crime” may
have changed in many, many ways since the time of the events in question. Weather
changes; seasons change; lighting changes; vegetation grows and is cut back; cleaning and
painting may be done; buildings may be renovated. In order to understand those
environmental differences, it would be necessary for the court to receive oral evidence from
19
someone who saw the scene at the time. In which case, one wonders, why not simply take
that oral evidence, and forego the view?
The common law rules, as they apply in Queensland, do not formally regard views as
evidence at all. The purpose of a view, at common law, is to enable the court to understand
the evidence; not to receive new evidence. In Scott v Numurkah corporation, the judge
visited the scene of the dispute (a community hall) in his private time, to view the conditions;
he then made some observations in his judgment. An appeal was successful, because the
judge was held to have been taking new evidence. More recently, and perhaps more
famously, notorious gang-rapists Bilal and Mohammed Skaf successfully obtained a retrial
on one charge after two jurors, again in their private time, visited the scene of the Skafs’
crime to observe the lighting conditions. Neither of these visits were “views” in the proper
sense because they involved persons visiting the scene in their own private time; yet each
example clearly highlights the dangers of treating such visits as evidence.
The common law distinction, however, seems to lack coherence. If a view is merely “to
understand evidence” then doesn’t that really mean the view is just indirect evidence?
Evidence which, in combination with other evidence, enables the court to understand what
occurred? The distinction between “evidence” and “a view which enables the court to better
understand evidence” seems spurious.
The drafters of the Uniform Evidence Act appear to agree. Under the Uniform Evidence Act,
views are regarded as evidence, and are conducted under essentially the same circumstances
as courtroom demonstrations.
Activity
Under Queensland law, which of the following is not, strictly speaking, real evidence:
a) The appearance of a witness with a facial disfigurement caused during the motor
vehicle accident which forms the basis of the case;
b) Several small bags of cocaine which were located in the defendant’s home;
c) A visit, by the judge, the lawyers and the witness, to the location where a body was
discovered buried; and
d) A demonstration, by a witness, of how they were tied to a chair.
Answer: (c). A view is not, strictly speaking, an item of evidence. Rather, it is presented in
order to enable evidence to be understood.
What are some of the inherent challenges of courtroom demonstrations:
a) Actors, or witnesses in a courtroom, have an entirely different emotional context to
persons in the midst of a crisis;
b) The courtroom demonstration must, itself, be based on some description.
The
description could be given in oral evidence;
c)
The courtroom demonstration might differ from the real event in relatively minor
ways which add up to a major difference; and
20
d) Courtroom demonstrations may be expensive to undertake.
Answer: All four are potentially problems, but (a), (b) and (c) are problems from an
evidential perspective, suggesting that courtroom demonstrations are seldom, if ever, useful.
10.0
Tutorial Questions
Problem 10
Evidence in the movies: The Insider
The Insider tells the story of Jeffrey Wigand, who publicly accused tobacco corporations in
the United States of manipulating the chemical composition of cigarettes in order to make
them more addictive. In this scene, Wigand is interviewed for the US 60 Minutes program.
He gives evidence that he drafted a memo to senior managers explaining that the chemical
used to enhance the effects of tobacco was carcinogenic. Watch the clip.
https://www.youtube.com/watch?v=qcWi7DRWPq4
Assume that you were representing smokers in a suit against the company, and consider the
following questions.
1. Would the memo sent by Wigand be an important piece of evidence?
2. Would it still be as important, even if Wigand was available to give evidence?
3. What, if anything, could the document demonstrate that Wigand’s own evidence could
not?
4. Can this document, on its own, prove that the substance in tobacco was carcinogenic? If
not, what additional evidence would be necessary to support this fact?
5. If Wigand gave evidence that he sent the memo, but appropriate senior executives gave
evidence that they never received it, would the document still be valuable? Why or why not?
6. If you were arguing the other side, would you want to prevent the document from being
admitted?
7. If you did want to prevent it being admitted, what arguments would you use? Would your
arguments change if the plaintiffs did not intend to call Wigand?
21
Problem 11
Real Evidence
In the discussion this week on real evidence, you will have noticed my sincere scepticism
about the utility of real evidence. Let us pretend, for a moment, that the parliament
proposed to amend the Evidence Act 1977 to state:



that exhibits, not being documents, were to be inadmissible;
that the courtroom was not to undertake a view; and
that courtroom demonstrations were to be inadmissible, unless they were merely
gestural and accompanied a verbal description, by the witness, of some action they
themselves took.
Would you support or oppose such an amendment? What are the three strongest arguments
for, and the three strongest arguments against this proposal?
11.0
Debrief
In Topic 6, you have learned:










that documents may be given in evidence, subject to specific rules of admissibility;
that documents come in many formats; that anything which is capable of recording
data for retrieval can be a document;
that documents are almost always hearsay, because they record observations made
outside the courtroom;
that under the common law, documents had to meet one of the hearsay exceptions,
and had to be authenticated by a person who was available to give evidence;
that statute in Queensland has modified the use of documentary evidence to make it
easier to adduce documentary evidence in both criminal and civil cases;
that photographs are admissible as documentary evidence, but that the photographs
must not have been modified in any way;
that audio recordings are admitted by playing the recording; and that if the recording
is available to be played (and can be sensibly understood) a transcript is not a
substitute;
that computer generated documents may be admitted with appropriate certification;
that a business’ “books of account” are automatically admissible once verified as
such;
that DNA evidence is admissible once certified by an authorised person;
22






that documents forming the substance of the dispute are always admissible;
that real evidence is evidence which the court can observe directly, for itself;
that it is valid for the court to take account of, and draw conclusions from, any aspect
of a witness’ presentation in the courtroom;
that exhibits may be used, but with caution;
that demonstrations may be undertaken, provided the circumstances allow
confidence that the demonstration is an accurate replication of the original
circumstances; and
that views may be undertaken, with caution, as a means to assist the court to
understand the evidence already before it.
23