Evidence – Page 2

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.

Example

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.

Browne v Dunn and pleadings, witness statements, etc

Browne v Dunn does not necessarily require puttage of a proposition if that proposition is already clear to the opponent through pleadings, witness statements, etc. The rule in Browne v Dunn is frequently misunderstood as requiring puttage even if the proposition is clear to the opposing party in such a way.

See eg Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525, discussed at http://www.the-civil-lawyer.net/2013/06/browne-v-dunn-automotive-food-metals.html. See also Odgers, [1.2.4440].

Importantly, Browne v Dunn is not a steadfast rule the violation of which necessarily leads to sanctions. Rather, its violation goes to the weight of the competing propositions.

Browne v Dunn and puttage

Practical guidance on what conduct is consistent with the ‘rule in Browne v Dunn’ appears in Reid v Kerr (1974) 9 SASR 367.

Amongst other things, a ‘half hinted imputation’ is insufficient and the cross-examiner must put the proposition ‘fairly and squarely … so as to allow the witness to respond’.

‘Possible’ v ‘probable’

Dahl v Grice appears to be the most recent (c 1974) Victorian authority for the proposition that if expert evidence as to a particular fact is ‘possible’, then the tribunal of fact can (arguably should) take into account any lay evidence and inferences to elevate ‘possible’ to ‘probable’.

The proposition is hardly novel.

Application of the authority would mean that where there are conflicting expert theories, other non-expert evidence may result in the determination of one of those theories as the most probable.

Judicial notice

Under the uniform Evidence Acts, judicial notice of facts is governed by s 144.

Subsection 144(4) provides an apparently mandatory procedural mechanism which the judge must use.

See also Halsbury’s, Cross for distinction between adjudicative facts and legislative facts.

See Odgers for examples of where judicial notice has been taken of facts. These published examples appear to be extremely limited. For example, no case seems to have gone as far as taking notice of Ohm’s Law even though that is irrefutable ‘basic physics’. But not taking judicial notice of such a fact and instead insisting on expert evidence would be contrary to the very policy underpinning judicial notice (wasting Court time).

The practical implication is that expert evidence led should explain Ohm’s Law. However, the scope of the contest is not always foreseeable: the opponent may take surprise issue in closing submissions on a related point (thus not strictly contravening Browne v Dunn) the response to which may require articulation of Ohm’s Law. Thus resort to a submission regarding judicial notice may be necessary.