Evidence:
The Courts and
the Commission a comparison
Andrew Watson
Maurice Blackburn Cashman
Introduction
We’re going to do three things:
 General
Rules of Preparation
wherever you are
 Practical exercise
 The main differences between
evidence in Courts and the
Commission
Evidence wins cases
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Cases usually won on facts not law
But what that strictly means is
cases are won on findings of fact
Courts/Tribunals/practitioners can
never be sure that the facts as
found actually occurred
The process of Fact
Finding
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Event Occurs and is Witnessed
Witness speaks to Advocate
Advocate selects what’s important/admissible
Witness gives evidence in chief
Court selects from what advocate has selected
and what witness has given as evidence in chief
as to what’s admissible
Witness is cross-examined
Witness is re-examined
Court finds fact
Evidence =
Risk and Uncertainty
Every stage of the previous process
inheres with risk and uncertainty
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The witness will have a faulty recollection and
may deliberately not tell the truth (in their
account to the advocate, the Court or both)
The advocate may exclude evidence that’s
important and relevant
The cross examination may lead to the
witness being disbelieved
The Court may get it wrong
Minimising Risk
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Rely on uncontroverted
facts
Rely on your opponents
facts
Preparation
Preparing your evidence
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Take a detailed proof
Remember your case theory
Structure the evidence
Prepare a witness statement (if possible)
Use documents - your opponents
wherever possible, yours (subject to
admissibility) if you don’t have any of
theirs
Deal with your opponents case
Explain the process to the witness
Preparing Witness
Statements
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Structure
The “your words or theirs”
debate
Annex exhibit documents
Leading Evidence Viva
Voce
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Avoid if possible
Plan out carefully
Don’t lead
What, why, when, where and who
Avoid the lazy “and then what happened”
If the witness forgets have another go
(differently phrased) if still unsuccessful
maybe come back later
Preparing For XXN
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Is absolutely critical to successful
cross-examination
Is a whole topic in itself; and
Is not going to be covered in this
lecture
Practical
Exercise
The rules of evidence
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Are the default position for Courts
Are not the default position for the
Commission
In the Federal Courts and NSW
are primarily to be found in the
Evidence Act 1995 in each
jurisdiction
Our Focus
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Evidence Act 1995 (Cth.)
The main differences between
Courts and the Commission
This is not a comprehensive review
of the law of evidence
In particular we only consider civil
proceedings
The main differences
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The Court won’t posses any
specialist knowledge
Relevance will be a stricter hurdle
The Hearsay exclusion
The Opinion Rule
The Courts are not
Specialists
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Neither the Federal Court nor the
Federal Magistrates Court are
necessarily presided over by industrial
specialists
You should not assume they know
anything about industrial instruments or
realities or that they have any
understanding of your industry or sector
Explain everything in what will seem like
kindergarten level detail
ADMISSIBILITY OF EVIDENCE
Is the evidence relevant?
(See Part 3.1.)
Yes
Does hearsay rule apply?
(See Part 3.2. See also Part 3.4and Part 3.8)
No
Yes
No
Does the opinion rule apply?
(See Part 3.3. See also Part 3.4 and Part 3.8)
Yes
No
Does the evidence contravene the rule
about evidence of judgments and
convictions? (See Part 3.5.)
No
Does the tendency rule or the
coincidence rule apply?
(See Part 3.6. See also Part 3.8)
Yes
Yes
No
Does the credibility rule apply?
(See Part 3.7. See also Part 3.8)
Yes
No
Does the evidence contravene the
rules about identification evidence?
(See Part3.9.)
Yes
(See Part 3.10.)
Yes
No
Does a privilege apply?
No
Should a discretion to exclude the
evidence be exercised?
(See Part 3.11.)
No
THE EVIDENCE IS ADMISSIBLE
Yes
Yes
THE EVIDENCE IS
NOT ADMISSIBLE
Relevance - the test
Section 55(1) provides:
“The evidence that is relevant in a
proceeding is evidence that if it were
accepted , could rationally affect
(directly or indirectly) the assessment
of the probability of the existence of a
fact in issue in the proceeding”
Relevance is stricter
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Facts in issue are defined by pleadings
and are by nature less ambulatory than
matters in a dispute/within ambit
Agreements are interpreted by reference
to the objectively ascertained intention of
the parties at the time of the agreement subsequent conduct is inadmissible,
fairness is not an issue
Hearsay
Evidence of a previous
representation made by a person is
not admissible to prove the existence
of a fact that the person intended to
assert
s.51(1)
The key terms
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“Representation” includes words spoken or
written and implications drawn from words
or inferred from conduct
“To prove the existence of the asserted
fact” means evidence of previous
representation may be adduced for other
purposes (must still be relevant and
otherwise admissible). Note s.60
Did the maker of the previous
representation intend to assert the
existence of the fact?
The important Hearsay
exceptions
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Admissions (s.81)
Business records (s.69)
Interlocutory Proceedings (s.75)
Evidence admitted for a nonhearsay purpose (s.60)
Contemporaneous statement re
health feelings, sensations
intention, knowledge or state of
mind (s.72)
The less important
Hearsay exceptions
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Maker not available (s.63)
Maker available and undue expense etc
(s.64(2))
The fresh in the memory exception
s.64(3)
Tags, labels etc, (s.70)
Electronic communications
origin,destination and time details (s.72)
Reputation of public or general rights
(s.74)
Opinion
Evidence of an opinion is not
admissible to prove the existence of
a fact about the existence of which
the opinion was expressed: s.76(1)
Exceptions to the
Opinion rule
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Expert evidence (s.79)
Admissions (s.81)
Lay opinion necessary to
understand a person’s evidence
(s.78)
Evidence admissible otherwise
than as opinion (s.77)
Credibility
Evidence relevant to credibility only
is inadmissible (s.102)unless:
 adduced
in XXN (s.103);
 rebutting certain denials (s.106);
 re-establishing credibility put in
issue (s.108)
 where hearsay has been admitted
and maker not called(s.108A)
Other matters
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Tendency and coincidence
evidence (part 3.6)
Privilege
The discretion to exclude evidence
(Part 3.11)
The rules regarding reviving
memory (ss.32 and 34)
Conclusion
Proper preparation
is the key