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Documentary and Real Evidence

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Queensland University of Technology

PJ09 LWB432 - Evidence Week 7 – Documentary & Real Evidence DOCUMENTARY AND REAL EVIDENCE Documentary evidence 1. IS THERE A DOCUMENT? Definition of ‘document’ in QEA – In Schedule 3, the definition of a document includes a document in writing, a plan, a graph, a drawing, a label, marking, film, soundtrack, visual images, photographs. The definition is extremely broad and includes so many different things. Sch 3 QEA (referred to in s 3 QEA) 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, sound track 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. Proof of the Contents of a Document 2. IS THE DOCUMENT THE ORIGINAL DOCUMENT? Original evidence rule: The original document must be produced in court where the contents of the document are being relied upon. Authentication is required to ensure that the authenticity of the document is met. For example, a document can be relied upon to prove – • that a defamatory statement was published; • the terms of the lease of a contract; or • a threat in an extortion case. IF reliance played on document only for appearance or identification purposes The original evidence rule does not apply where reliance is placed on the document only for appearance or identification purposes (Commissioner for Railways v Young). Commissioner for Railways v Young • Widow bringing an action against Cmr for Railways after her husband was run over by a train • Widow was trying to prove that the railway owed a duty of care to passengers • He had been drinking before the incident happened • Obviously, it was important to get a sample of blood to see if he was contributorily negligent • Key piece of evidence: they took a sample of his blood and they wrote some words on the test tube that it was collected in • Issue: Whether the label on that test tube of blood was evidence of the fact that it contained the blood of the person it was taken from • “The statement upon the label that it contained the blood of the deceased … could not be used as evidence of that fact but the identity of the writing on the jar [test tube] in the Doctor’s hands with what the Doctor 1 of 10 PJ09 LWB432 - Evidence Week 7 – Documentary & Real Evidence stated that he wrote was an admissible evidentiary fact forming part of the description” • So don’t have to produce the original evidence where you are only relying on the document for appearance or identification purposes • Just because had label with deceased’s name, couldn’t say belonged to man. Only goes to identification that it was the jar in question (description) – because passed through number of hands, must ensure that it remained the same Rationale for Original Evidence Rule: • It is assumed that the tribunal of fact will place more weight on written evidence or documents as opposed to oral testimony, especially as the tribunal of fact is able to read the document later • The rule ensures reliability and accuracy of the document • The rule avoids fraud and deception • The onus is placed on parties to produce the best available written evidence Exceptions to the General Rule 3. DOES AN EXCEPTION APPLY? There are exceptions to the original evidence rule, where original evidence is not required and secondary evidence (i.e. a copy or oral testimony of the content) may be sufficient. However, note that there is a duty on the parties to make a reasonable attempt to secure original document. The exceptions are as follows – (1) Unreasonable delay, expense or inconvenience (2) Opponent’s failure to produce after notice to produce has been served (3) Original lost or destroyed (4) Third party lawfully refuses to produce document (5) Production of original is impossible (6) Admission by party as to contents (7) Public documents (8) Statutory provisions (1) Unreasonable delay, expense or inconvenience: Where there is unreasonable delay, expense or inconvenience in obtaining the original, the rules of evidence can be dispensed with, and a copy of the document can be produced (rule 394 UCPR). (2) Opponent’s failure to produce after notice to produce has been served: If a party is in possession of the original document and they fail to provide it, a notice can be served requesting that they produce the document and production is asked for at trial (rule 227 UCPR). This notice for production is in contrast to a subpoena. A subpoena is given to third parties (not to the opponent) to bring a document along to court. If the opponent has failed to bring forward an original document, secondary evidence (i.e. copy or oral testimony of the content) can be used: Ewart v Royds. (3) Original document might be lost or destroyed: Where an original document is lost or destroyed, secondary evidence can be used. However, it must be proven that there was a bona fide and diligent search and that there was no fraudulent destruction of the original document. This would be a collateral issue to be decided by the judge on a voir dire. (4) Third party lawfully refuses to produce document: The contents of a document may be proved by 2 of 10 PJ09 LWB432 - Evidence Week 7 – Documentary & Real Evidence secondary evidence if a third party is not compellable to produce the original (e.g. on the grounds of privilege): Bell v David Jones. To fall within this exception, the original document must not be obtainable by a subpoena. (5) Production of original is impossible: As the definition of ‘document’ has a very broad meaning, it may be that it is not physically possible to bring the original document into the courtroom (e.g. a billboard, traffic signs, car registration labels). As the production of the original is not possible, secondary evidence of the document will be permissible, for example, a photo of the original document, or handwritten account: Owner v Bee Hive Spinning. (6) Admission by party as to contents: A party might admit to the contents of a document (e.g. admit to signing a contract), and if the other side has a copy of the document (secondary evidence), the copy of the contract will be admissible. (7) Public documents: Where the production of public documents is required, the original public document will not need to be produced in court and secondary evidence is sufficient. • s 51 QEA – A certified copy of public documents is admissible as evidence • s 55 QEA – The production of ASIC certificate of registration of a company is proof of incorporation or registration of a company in Queensland • s 74 QEA – The originals or certified copies of a certificate are proof of birth, adoption, death or marriage (e.g. birth certificates, marriage certificates etc) NB. NOT examinable. (8) Statutory exceptions (QEA): • s 116 – All photocopies or facsimiles of documents to the same extent as the original are as good as the original document NB. Other exceptions (not examinable) • ss 84 and 85 – Copies of entries in a book of account is evidence of the transactions and accounts recorded therein. But, a copy of an entry in a book of account is not admissible in evidence unless it is proved that the copy has been examined with the original entry and is correct (s 86(1) QEA). • s 97 – Authentication of a copy of a document required to the court’s approval • ss 124 and 125 – allows judicial discretion to be exercised • s 44 – copies of certificate, document of corporation • s 46 - 49 – copies of Act, subordinate legislation • s 53 – copies of judicial proceedings • ss 56 - 58 – copies of incorporation, State land grants, lease or licence, letters patent • ss 68 - 69 – written laws, judicial proceedings in overseas country • ss 71 - 72 – copies of royal proclamations Proof of execution of public documents There is no need to prove the execution of a public document, as judicial notice can be taken that certain things are contained in public documents. • Any document with the public seal of the State (s 41 QEA) • Documents with the signature of holders of public offices of the State (e.g. the Governor, Ministers, 3 of 10 PJ09 LWB432 - Evidence Week 7 – Documentary & Real Evidence judges etc) (s 42 QEA) • Acts and statutory instruments to be judicially noticed (s 43 QEA) • Gazettes (s 44 QEA) Proof of the execution of private documents (EXAM HINT: “emphasis on this in exam”) 4. IS THE DOCUMENT AUTHENTIC? Private documents must be shown to have been adopted or executed by the person – • Adoption o The document is written or made by person o Person has acknowledged as correct by signing (initialling, putting his/her mark on document after contents have been read to or by the person) etc • Execution o Someone is familiar with their signature and can say that the person executed it (e.g. can be a witness who witnessed the signature or someone who recognises their handwriting) o Due execution is proved by showing it was signed or acknowledged by the party to be charged. Proof of Handwriting There are several ways we can prove handwriting of a person in a document: • Admission – Where someone admits that they signed the document (NB. Unlikely for someone to admit as goes against them) • Opinion evidence – Opinion evidence can be called, either an expert in handwriting or a lay person who is familiar with the person’s handwriting (Sherrard v Jacob) • Comparisons s 59 QEA – The court can compare the signature on the document in question and a genuine example of the person’s handwriting in a different context to determine whether authentic. The person who makes the comparison can be a judge, jury or an expert. • Eye witness – A person who witnessed the signing of the document in question. IF civil case Rule 394(1) UCPR applies to proof of handwriting: r 394(2)(a). If a fact in issue is not seriously in dispute or strict proof of a fact in issue might cause unnecessary or unreasonable expense, delay or inconvenience in a proceeding, the court may order that evidence of the fact may be given at the trial or at any other stage of the proceeding in any way the court directs: r 394(1) UCPR. 4 of 10 PJ09 LWB432 - Evidence Week 7 – Documentary & Real Evidence Proof of attestation (NB. Will not be a will in the exam) Attestation is the proper witnessing of a document – execution overcomes the hearsay rule therefore there are few instances where attestation is required. Proof of attestation in wills: If it becomes necessary to prove the due execution of a will, it is essential to call one of the attesting witnesses or other person present at the time of the execution. With proof of due execution and attestation, a copy may be proved if the original is lost or destroyed. If all witnesses are dead, insane, beyond the jurisdiction or cannot be traced, proof of the handwriting of at least one of the witnesses is required. Previously, there was a rule were we could not use extrinsic evidence where attestation is required. Now, extrinsic material is allowed where attestation is required (s 61 QEA). Where attestation is not required for a document to be valid, proof of attestation is not required (s 60 QEA). If probate is sought in common form (i.e. via the Registrar) these requirements do not apply, though it will not be granted where the will is not prima facie regular in all respects (rule 604 UCPR). Proof of attestation other than in wills: Other documents may be proved by the testimony of one of the subscribing witnesses, if any. However, extrinsic evidence is allowed where attestation is required (s 61 QEA). Where attestation is not required for a document to be valid, proof of attestation is not required (s 60 QEA). Presumptions as to documents Formal validity of “ancient” documents: If a document is more than 20 years old and comes from proper custody, the validity of the document need not be proved, because it has ‘formal validity’: s 62 QEA. The document is deemed to be executed on the date it bears. Unstamped documents: Documents that need to be stamped cannot be relied upon unless it is stamped or an undertaking is made to pay stamp duty: s 487 Duties Act 2001 (Qld). Therefore, if there is a property transaction, the document must be properly stamped in order to be relied upon. Admissibility of extrinsic evidence affecting the contents of a document IF there is a contract and an ambiguous term Parol evidence ru
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