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5. Real Evidence

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Real Evidence **Views, Demonstrations, Exhibits on Exam this Semester**  Experiments with evidence  Types of Real Evidence o Views & Demonstrations o Tape Recordings o Conversations o Video Recordings  Preserving Evidence o Warrant: PPRA o Anton Pillar Order: r261 UCPR o Pre-emptive strike: r250 UCPR = Not defined in QEA = Physical & Tangible  It involves tendering to court—exhibits o Views and demonstrations o Electronic evidence – tape recordings, video, photos o DNA testing (s95A QEA), fingerprints, weapons  Must pass the test of relevance  Will be marked as an exhibit when tendered → will go with the jury to the jury room Experiments with evidence By Parties  Civil—party can apply to inspect/experiment before trial Court order in civil cases: r250 UCPR  Defendant in criminal cases must be allowed to conduct own experiments to put them in the same position as the crown: R v Ekert (murder—R conducted experiments on weapon  Def also allowed to conduct own experiments) o Cannot change the item o Must be in presence of someone from Crown By Jury: Kozul v R; Some NSW Case (rape—jury went to place to see lighting of their own volition  convictions quashed)  Can replicate experiments done in courtroom  Cannot do anything that would present new evidentiary material Views and Demonstrations Scott v Numurkah Corporation (nuisance—complaints that dance hall interfered with use of adjoining theatre—judge visited location & listened from theatre | string quartet played in hall instead of rock band | no people to absorb noise  constituted a demonstration—not sufficiently accurate—no consent of parties—used as evidence → retrial)  Civil Cases → power to view in UCPR: r478 UCPR (The court may inspect a place, process or thing, and witness any demonstration about which a question arises in the proceeding) View = refers to a visit to a relevant place:  does not require parties consent  if it becomes a demonstration → HCA authority says retrial is necessary  not evidence: Scott v Numurkah Corporation (judge used view to form inference that no nuisance) o assists in understanding evidence (either oral testimony or documents) Andrew Trotter LWB432 Evidence Demonstration = reproduction of series of events that is subject to strict requirements  requires parties consent: Scott v Numurkah Corporation (judge visited premises without consent—held to be a demonstration not a view  retrial)  little weight unless accurate reproduction: Scott v Numurkah Corporation (string quartet rather than rock band | no people present  retrial)  admissible as real evidence Examples  Requiring accused to dress in certain clothing & walk before jury = demonstration → judge cannot allow prosecution to require accused to do so: Evans v R (2007) (robbery—clothing recovered from scene—prosecution forced accused to wear & walk before jury  no consent → conviction quashed)  Can go to view orchid farm to determine whether a business or a hobby: Crimp v Isis Central Sugar Mill per Cullinane J (1994) (Kelley apparently worked on this case) Tape recordings Butera v DPP (heroin trafficking—tape recording of conversation among conspirators—poor quality tape in Thai & Malay—Interpreters gave oral evidence, verified translations—admitted as evidence  no problem)  Must authenticate tape to— (Butera v DPP (Mason, Brennan & Deane JJ)) o prove not enhanced (prove provenance of the tape) o prove accuracy of copying process o identify the voices on the tape  Court to determine how should be authenticated: s97  original evidence = Sound on the tape  Taped copy of original tape also = original evidence (best evidence rule does not apply) Transcripts  Secondary evidence of the sounds → Prima facie not admissible o Jury ordinarily not allowed to take into jury room  It will only be available as an aid in exceptional circumstances—eg where very long and jury cannot be expected to remember all of it: Butera (500 page transcript of poor quality tape  admissible) o Instruct jury that only secondary evidence—an aid ↔ NOT independent evidence of the contents of the conversation Translations  Translator gives oral secondary evidence—expert evidence so may be cross examined: Butera  Translation must be directly taken from the tape (stop & start tape then translate)  Ordinarily not allowed to take into jury room: Butera (but was here due to special circumstances—length justified departure from normal practice)  Tape lost → person who listens to a tape can be expert witness o issues of weight that will be put on it given the recollection etc  May be important to reduce to writing so the jury can appreciate the XE of translator/scribe Andrew Trotter LWB432 Evidence Conversations Phone Conversations  Intercepted phone conversations inadmissible unless— o done with a warrant  QLD police cannot get warrant (only federal police): Telecommunications (Interception) Act 1979 o Evidence inadmissible of any recorded conversation between people: s46 Invasion of Privacy Act  UNLESS made by a party to the conversation (s43) o Taping by non-party is an offence under the act Between People  Warrant can be obtained to surreptitiously record conversations between people: PPRA provisions & Crimes and Misconduct Act (get a listening device warrant from a Supreme Court judge) Video tapes and photos (Real & Documentary) Admissible as evidence of what it depicts: Sitek (misappropriation of property at casino | got more chips than paid for | retained with knowledge of mistake—operator of security cameras gave evidence  admissible as eye-witness—could refresh memory—video also admissible, need not be incorporated in testimony)  photos and video tapes are also admissible as o real (original) evidence: Sitek o documents: Sch 3 para(f) QEA  Must be authenticated—judicial discretion to exclude considering— (Sitek) o Providence of tape—is what it purports to be | not enhanced o Copying process legitimate  A person who watches video o Watches as the event happens → oral testimony admissible as eye witness evidence: Sitek o Watches later → secondary evidence  But may become an expert on what was on the tape  Photographs can never be hearsay in Qld: Sitek  Civil proceedings—if want to rely on tape, video or photograph → must give notice and opportunity to inspect 7 days before the trial: r393 UCPR Also Statements made by Computers [→Statutory exceptions to hearsay] Discretion  Has discretion to reject if expedient in the interests of justice, despite exception: s98  Document can be withheld from the jury room if the judge thinks the jury might place undue weight on it if it is to be allowed into the jury room: s99  The court may draw reasonable inferences from the form or contents of the document in determining whether admissible: s96(1) Weight  Considerations— (s102) o Whether statement contemporaneous with facts o Whether maker of statement had any incentive to misrepresent or conceal the facts  If a copy → take into account have lost the opportunity for XE on— (s125) o Why a copy needed to be made (or original destroyed, parted with) o Accuracy of reproduction o Incentive to tamper or misrepresent Andrew Trotter LWB432 Evidence PRESERVATION OF REAL EVIDENCE It may be advisable to preserve real evidence by a pre-emptive
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