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.

When the High Court will reconsider a previous decision

In Attorney-General (NSW) v Perpetual Trustee Co (Ltd) (1952) 85 CLR 237, 243-244, it was held that there is “no very definite rule” as to when the High Court will reconsider a previous decision.  However, four factors were identified as relevant by Mason CJ, Wilson Dawson, Toohey and Gaudron JJ in John v Federal Commissioner of Taxation (1989) 166 CLR 417, 438-439.

See the various judgments in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53.

 

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.

Subpoena of employee rather than employing body corporate

Dicta of Mason J (as he then was) in Rochfort v TPC [1982] HCA 66; (1982) 153 CLR 134 is that in some cases it may be appropriate to subpoena an employee directly rather than the employer (as would be the usual practice), having regard to ‘the efficient administration of justice’.

Recognition of these interests of the employer suggests that in general it is he, not his employee, who should be required to produce the documents. Of course, the protection of the employer’s interests must give way to the public interest in the efficient administration of justice in case of collision between the two. So if it is impracticable to serve a subpoena on the employer, e.g., by reason of absence overseas, incapacity or his whereabouts, being unknown, the court will insist on production of the documents by his employee or agent who holds them. In these circumstances the prompt dispatch of court business must prevail over the protection of the employer’s interests. (at p145)

Discovery amendments to CPA

The Justice Legislation Amendment (Discovery, Disclosure and  Other Matters) Act 2014 amends the Civil Procedure Act 2010 (Vic).

The highlights:

  • Sections 50 and 50A: introduce a device called a ‘statement of issues’ which the Court may use to inform pre-trial and trial management.  This would seem to be a statutory extension of the Court’s existing case management powers.
  • Section 55A allows the parties to exchange all documents in their possession or control without waiving privilege, including in electronic format.
  • Section 55B allows the Court to direct a party file an ‘affidavit of document management’.  Section 55C gives the Court the power to compel the deponent to an oral examination.

The most significant change with the potential to deliver real benefits is the last one, although whether its use will be embraced is another matter.

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.