PJ09 LWB432 – Evidence Week 1
INTRODUCTION TO EVIDENCE
Nature of Evidence: ‘Evidence’ is comprehensively defined as ‘the material offered in court
during a trial for the purpose of enabling the finder of fact to reach a decision on the issues in
dispute’. The law of evidence consists of the rules and principles that govern what information
will be considered by the court or tribunal to resolve the issues in the case – it is not
• A’s car drives along Alice Street and B’s car is driving down George Street
• There is a collision
• Each of the drivers are suing each other for negligence – breach of duty of care
• Negligence is the substantive law
• Evidence law will come in to determine whose version should be accepted and what information
should be accepted in the court
• A lawyer will need to prove the elements of an action in negligence (tort)
• Evidence is required to prove the substantive law, and evidence law governs how the substantive law
facts are found
Elements: The ‘law’ of evidence has three main elements – prescriptive rules, ethical principles
and forensic practices. All of these govern how facts and other information are adduced in court
proceedings, both civil and criminal. Evidence is concerned with –
• The kind of evidence which will be accepted by a court
• The amount of evidence which will be required by a court
• The manner in which evidence must be presented to a court
• The persons who may (and often must) give that evidence
• Magistrates • Magistrates – Fed Mag Court
• District • Federal
• Supreme • Family
• Court of Appeal • High Court
• Other Tribunals • Tribunals (e.g. AAT)
Prescriptive rules for Queensland Courts exercising state jurisdiction
• Evidence Act 1977 (Qld) (“QEA”)
• Common Law
• Other Statutes (e.g. Criminal Code; UCPR)
• s 5 Evidence Act 1995 (Cth) (“CEA”) – limited application
Queensland Courts exercising federal jurisdiction
• State Evidence law applies unless Commonwealth Act provides otherwise when a Queensland
court exercises federal jurisdiction (s 79 Judiciary Act)
• CEA does not provide otherwise
• Therefore same as for state jurisdiction
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Evidence Act 1995 (Cth) (CEA)
• Federal Magistrates Court
• Federal Court
• Family Court
• High Court
• Tribunals bound by rules of evidence (not AAT)
• The CEA is not code – where there are gaps in the law, s 79 Judiciary Act says that state
evidence law is applicable, unless a Commonwealth Act provides otherwise
• Other Commonwealth statutes set up their own rules (e.g. Crimes Act)
Issue: What source of law of evidence applies?
Here it is the [Magistrates Court/District Court/Queensland Supreme Court/Court of
Appeal] which is a Qld Court and it is exercising [state jurisdiction] because the court is
dealing with [assault/stealing/murder] which are state issues. Therefore sources of law are
the QEA and provisions of the Criminal Code (and possibly PPRA). If there are any gaps in
the QEA, then go to the Common Law.
IF criminal matter
As this is a criminal matter, the UCPR would not apply.
IF civil matter
As this is a civil matter, the UCPR would also apply.
NB. Exam Tips – all questions involve Qld Courts exercising Qld jurisdiction.
Systems of adjudication
Adjudication is a search for the “truth”. There are 2 systems of adjudication – adversarial and
inquisitorial. In the adversarial system, the judge is the neutral third party referee, with the parties
running the show and determining the evidence to be considered. In the inquisitorial system, the
judge runs the show and determines what evidence is to be considered.
In the adversarial system, there is a presentation of evidence by interested advocates to an
unprepared fact-finder (the judge), whereas in the inquisitorial system, there is a conduct of an
inquiry into the facts by a neutral and informed judge.
Features of adversarial system
• The parties decide issues, collect evidence and present the evidence
• Advise party, present and argue case in court
• Counsel have a duty to maintain the observance of the rules and principles of evidence by
making objections to inadmissible evidence – if you don’t object to inadmissible evidence, the
evidence will be admitted and go before the jury
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• No pre-trial knowledge of evidence of case
• Impartial umpire or referee
• Governs conduct of trial
• The judge has the power to exclude witnesses from the courtroom until they are called to give
their evidence, to prevent witnesses from “tailoring” their evidence to match what they have
heard from previous witnesses
• The judge is to decide questions of law – admissibility of evidence or the exercise of judicial
discretion are questions of law
• The judge may also decide questions of fact (be the “tribunal of fact”) as well as questions of
law if there is no jury
Issue: Can Justice/Judge [Name] question the witness?
Judges must act impartially whilst questioning witnesses and refrain from acting as though
they are inserting themselves as a party to the proceedings: Hsing.
IF analogous to Hsing
Here the facts are similar to Hsing. H was from a non-English speaking background and had
made a damaging confession in the police interview. Defence called a linguistic expert who
said H was not proficient in English language and was saying how reliable evidence was.
The Judge asked the expert 122 questions during evidence in chief cf 201 by own counsel,
then asked 46 questions in cross-exam cf 52 questions asked by the Crown and then in re-
examination he asked 10 questions cf 19 by defence counsel.
IF given details of number of questions
Here [judge] has asked [#] of questions compared to [#] asked by counsel. Therefore
arguable that have inserted themselves so much that would be considered a party. As
such [conviction likely quashed/counsel have good grounds for an appeal].
IF not given details of questions
Here there are not enough facts. We would need to know how much interference
was made by the judge. If they have asked for example 40 questions compared to
counsel’s 50 questions then the judge will likely have inserted themselves so much
that considered a party.
IF distinguishable from Hsing
Here the facts are distinguishable from Hsing. H was from a non-English speaking
background and had made a damaging confession in the police interview. Defence called a
linguistic expert who said H was not proficient in English language and was saying how
reliable evidence was. The Judge asked the expert 122 questions during evidence in chief cf
201 by own counsel, then asked 46 questions in cross-exam cf 52 questions asked by the
Crown and then in re-examination he asked 10 questions cf 19 by defence counsel.
Whereas, [judge] has [asked very questions compared to counsel/merely asked clarification
questions] and has likely not inserted themselves so much that would be considered a party.
As such [conviction would not be quashed/counsel would not have good grounds for an
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• Hsing was convicted of supplying a prohibited drug, heroin.
• He was from a non-English speaking background.
• When the police interviewed him he made damaging admissions and at trial he protested that he didn’t know
what was going on because of his difficulty with English.
• Counsel argued that there was a significant problem with reliability of evidence and statements that the
accused made when interviewed by police
• The accused seemed perplexed when being questioned
• A linguist was called in – the ways that questions were asked raised questions about his understanding
of the questions delivered
• The judge started asking the witness directly about how the questions were being asked and what
the witness’ demeanour was
• The defence counsel asked 201 questions from the expert and the judge asked 122.
• During the cross-examination the Crown prosecutor asked 58 and the judge asked 46.
• In the re examination of the witness the defence counsel asked 10 questions and the judge asked 19
• It was argued on appeal that it was almost as if the judge was a party to the proceedings himself
• Held: (per Street CJ)
o the appeal was allowed and the judge inserted himself so much that he was considered a
party to the proceedings (e.g. to clarify the witness’ answers).
o The prima facie position (parties shape the way litigation is put into court) had been usurped
by the judge by the amount of questions he had asked.
o There is a duty to ensure that the evidence comes out in a fair and intelligible way, that duty
will be exceeded when there is such a