Category Archives: Evidence

Findings of fact apparently based on credibility cannot shield what is otherwise incontrovertible

A tribunal of fact cannot insulate its fact-finding by asserting that it is all based on credibility. This obvious proposition was explained in Fox v Percy (2003) 214 CLR 118:

[28] Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

[29] That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

(footnotes omitted)

Blatch v Archer

A restatement of the obvious: in deciding whether something has been proved on the balance of probabilities, it is important to have regard to the ability of the party who has the onus to lead evidence on a particular matter.

From Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168; BC200103028 at [16]:

[14] There is a long-standing controversy whether the civil standard of proof requires a numerical probability in excess of 50 per cent (see Davies v Taylor [1974] AC 207 at 219), or belief amounting to reasonable satisfaction (see Briginshaw v Briginshaw (1938) 169 CLR 638 at 642-643). My own opinion is that the resolution of the controversy involves recognition that, in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. I discussed this in some detail in an article published at (1995) 69 ALJ 731.

[15] In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf 69 ALJ at 732-733, 736, 740. As stated by Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65 (98 ER 969 at 970):

All evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

Waiver of privilege over communications between solicitor and expert

In Traderight (NSW) Pty Ltd v Bank of Queensland Limited (No 14) [2013] NSWSC 211, Ball J observed that solicitors have a ‘duty’ to ensure that expert reports are in admissible form. This contrasts with the (unduly) conservative view that privilege in every piece of communication is necessarily waived by the service of the expert report.

See also New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258.


Viva voce evidence in narrative form or with aids of charts, exhibits etc

Section 29 of the Uniform Evidence Acts provide:

Manner and form of questioning witnesses and their responses

             (1)  A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court.

             (2)  A court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative form.

             (3)  Such a direction may include directions about the way in which evidence is to be given in that form.

             (4)  Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.

They appear to barely have been used.

In the context of narrative evidence (subs (2)-(3)), the QLRC observed that the Uniform Evidence Acts were meant to assist Courts to encourage narrative evidence in appropriate circumstances, but noted that this had not occurred often.  The QLRC also observed that courts have inherent jurisdiction to permit narrative evidence even without the Acts, but nonetheless such leave is rarely given.

There was no discussion at all about subs (4).

In Matthews v SPI Electricity Pty Limited (No. 34) [2014] VSC 40, the plaintiff argued that one of her witnesses ought to be permitted to refer to a physical model in the course of their giving evidence.  This was opposed by the first defendant.  The argument was resolved in the plaintiff’s favour not through s 29 but a broad application of the overarching obligations in the Victorian Civil Procedure Act.

Although there does not appear to be any authority which expounds a sensible approach, the practice of making ‘hearsay’ objections to evidence in chart form would appear to be squarely addressed by s 29(4) as well as s 50 (proof of complex or voluminous documents in ‘summary’ form).

Interestingly, there is a note to section 229 (jury documents) of the Criminal Procedure Act 2008 (Vic) which refers to s 29(4) and s 50 of the Evidence Act.  Section 232 (manner of giving evidence) also provides that nothing in it affects the operation of ss 29 and 50 of the Evidence Act.

Evidence produced by processes, machines and other devices

Section 146 of the Uniform Evidence Acts provides

(1) This section applies to a document or thing—

(a) that is produced wholly or partly by a device or process; and

(b) that is tendered by a party who asserts that, in producing the document or thing, the device or process has produced a particular outcome.

(2) If it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document or thing on the occasion in question, the device or process produced that outcome.


It would not be necessary to call evidence to prove that a photocopier normally produced complete copies of documents and that it was working properly when it was used to photocopy a particular document.

North Sydney Leagues’ Club Limited v Synergy Protection Agency Pty Limited [2012] NSWCA 168 considered the scope of the provision.  At paragraph 63, the Court held:

Section 146 is directed to evidence produced by the application of a mechanical or technological process. Photocopied documents, computer generated material and material generated from data stored in a computer are typical examples. Section 146(2) is not directed to the underlying accuracy of the information contained in a document or record that is produced in this way. For example, s 146(2) has nothing to say about the accuracy of a statement in a photocopied document that $AUD100 was worth $US96. Rather, s 146(2) is a means whereby, on this example, a photocopy of a document containing such information may be received into evidence.

Note also the definition of ‘document’ under the Uniform Evidence Acts, as ‘any record of information’.  The photocopier example in the Acts is therefore probably not the high-water mark of the section’s applicability.  Consider an electronic scale which logs a record of the weight of objects placed on it, and which can print those records.  Suppose the scale contained a record of 1kg having been measured, and the scale prints a record showing a 1kg weighing.  The section should result in not just the conclusion that the printed record reflected the data logged by the scale, but also the fact that 1 kg weight was placed on the scale.  In the words of North Sydney Leagues Club, section 146 should result in the assumption of correctness of the ‘underlying accuracy of the information contained’ in that printed record.

Reliability of ‘scientific’ evidence

From SAI Global Litigation Newsfeed 30/05/14:

Upcoming High Court Decisions to Determine Limits on Questionable Scientific Evidence

The Australian reports that the High Court will be ruling on the use of questionable scientific evidence in courtrooms in two upcoming cases.

In Honeysett v The Queen, the Court will reportedly consider “whether ‘face mapping’ or ‘body mapping’ from CCTV footage constitutes ‘specialised knowledge’ within the meaning of the Evidence Act 1995 (NSW)”. University of NSW legal professor Gary Edmond reportedly questioned the validity of body mapping as an identification technique, particularly in relation to “low-quality CCTV images where the person’s wearing a disguise”. Professor Edmond reportedly noted that research on unfamiliar face-matching has shown that those with experience performed no better than ordinary people, and opined that the NSW courts need to include a requirement for reliability in specialised knowledge.

In Fitzgerald v The Queen, the Court will reportedly consider the strength of DNA matches as scientific evidence. Reportedly, Charles Sturt University professor Jane Goodman-Delahunty expressed concern that jurors may be “blinded by science”, stating that juries do not tend to show the same degree of caution in relation to DNA evidence as they do in regards to other circumstantial evidence. Professor Goodman-Delahunty reportedly said that even strong scientific evidence of a DNA match is not proof that the accused was at a crime scene, while DNA consultant Brian McDonald opined that courts should not use DNA to convict someone with a total lack of corroborating evidence.

This could have significant implications for the practice of manufacturing ‘scientific’ evidence and presenting it as unchallengeable.  While the criminal cases appear to be in a slightly different context, there should be significant concerns about the increasing practice of commissioning ‘junk science’ to muddy the waters over the pleaded case and defence.