Introduction

Courts operate by predictable rules when determining whether evidence adduced at trial is admissible. These rules exist to make trial outcomes fairer and more reliable that they otherwise would be; for without these rules the judgment as to whether the evidence brought is fair, would depend of the judge’s feelings at the time and the rule of law would be difficult to find. This would incentivise lawyers and investigators working for them, to act unfairly.

 

When any item of evidence is presented, the other party can raise an objection to it. The objection may stand if there is a problem with the source, the manner in which it was obtained, the subject matter, or the manner of its presentation to the court. The party attempting to bring the evidence can counter with an argument of their own and have the evidence admitted.

 

Recently the common law rules of evidence and accompanying statutory laws have been replaced by the Uniform Evidence Law (UEL) in most states and territories, based on the Commonwealth’s model Act. Victoria enacted UEL in 2008. These statutes were not meant to eliminate all of the preceding common law, but they override much of it.

 

It is essential that when evidence is first obtained it be done in a manner which does not transgress the rules as having to obtain evidence anew may result in an opportunity for witnesses to re-think and collude, tainting their reliability. It may even result in refusal on the part of witnesses to devote further time. An investigator therefore needs to know the rules of evidence as a tool of trade, even if acting under detailed instructions from someone else who already knows.

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Relevance

Evidence must bear a sufficient relationship to the actual event(s) that constitute the alleged breach of law. This is because evidence that is inflammatory and not actually relevant may sway the jury or judge inappropriately. The relevance rule also saves time. Section 55, sub-section (1) says that evidence is admissible if it will, directly, or indirectly, help to establish whether a fact in issue is true or false. A fact in issue is anything that must be established by either party to prove their case or debunk the other’s case.

 

As an illustration, consider R v Buchanan [1966] VR 9 The defendant driver was charged with manslaughter in relation to a car collision. Witnesses testified that they saw him driving very fast 35 to 40 minutes prior to the accident. The evidence was admitted at trial. On appeal it was ruled that the real issue was whether the accused was still driving with culpable negligence at the time of the accident. The fact of intoxication provided a connecting link between the evidence in question and the incident of the crash. If no alcohol had been involved then lacking a connecting link, that evidence would have been inadmissible as irrelevant.

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Hearsay

Under Section 59 evidence that is not presented by anyone other than its original source is inadmissible as hearsay. One person cannot assert a fact that they were told by someone else. This applies to documents also, so that the content can only be considered by the court if the author themselves testifies as to what it says.

 

There are, however, a great many exceptions. It is commonly thought by non-layers that this means all evidence needs to be in the form of original observations from first hand eyewitnesses. The best approach is to obtain all evidence available from the best witnesses and ensure that their sources are nominated so that further enquiries can be made. In a surveillance investigation the investigator him/herself becomes a witness who can be called if needed.

 

Exceptions

Distinction between first and second hand hearsay

The Uniform Evidence Law recognises two different types of hearsay. First hand hearsay exists when the person who is the original source of information, who we will call ‘A,’ informs another person, ‘B’ about something they have seen, heard or done. Then B is called to give evidence and refers to what A told them. Suppose instead B tells C and C is called to give evidence and refers to this set of facts. C’s evidence about A’s original information is second hand hearsay.

 

First hand hearsay is admissible about a person’s previous statements about their own health, feelings, sensations, intention, knowledge or state of mind. It is also admissible in a civil proceeding, if the original witness is deceased, unwell or untraceable – or if it would cause undue expense or delay to call them. Furthermore, a document containing the same information can also be admitted in evidence.

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Unavailability of witnesses – criminal proceedings

In a criminal proceeding, where the original witness is unavailable, first hand hearsay can be used when the representation being testified about was:

• made under a duty to make representations of that kind; or

• made when or shortly after the asserted fact occurred and in circumstances that make it unlikely to be a fabrication

• made in circumstances that make it very likely; or

• against the interests of the person who made it originally, and in the circumstances it appears reliable.

 

Evidence relevant for a non-hearsay purpose

In Section 60 hearsay evidence is admissible if it goes to a point other than the fact that is asserted by way of hearsay. A witness therefore can testify that they were told a certain thing in a conversation. The court can hear an account of the conversation, but it cannot use the information that was communicated as evidence in and of itself.

 

Business records

Under section 69, the records of a business, recorded in the normal course of business and not in an internal investigation, are considered generally to be reliable as they have to be in order to be of use to the business. They are therefore admissible even where there is no-one to testify to their content. The author must be someone with knowledge of the facts in question.

 

Opinion

Section 76 provides that a mere opinion about a fact is not admissible to prove the fact. Section 77 however states that an opinion used as evidence of something other than the facts alleged in the opinion is nevertheless admissible.

 

Exceptions

Regulatory certificates and documents

Sub-section (2) of section 76 allows an opinion stated in a document or certificate made under statute to be admitted as evidence.

 

Lay opinions

A person may make an assessment – as opposed to a proper measurement or expert judgment – of someone’s age, their sobriety or the speed they are driving at, for example, as long as it is not mere speculation. Courts allow this sort of evidence under section 78.

 

Specialised Knowledge

Subject to section 79, a witness gives an opinion based on specialised knowledge gained through training, study or experience, then the opinion qualifies for the exemption.

 

Past Judgments and Convictions

Exclusion of evidence of past judgments and convictions

Section 91 prohibits the admission of evidence of past court decisions, or similar kinds of decisions as to facts, to prove a point in issue in the current proceedings. Therefore if a person has been found liable for breach of contract, the existence of that finding cannot be used against them in a subsequent trial for some other fraud or contractual breach.

 

Exceptions

A past finding can be admitted as evidence of some point, as long as the essential facts of one matter do not stand to prove the essential facts of the matter at hand. Also, in civil proceedings evidence of convictions of a party through or under whom another party claims, are admissible. Evidence of past convictions can also be admitted in defamation proceedings.

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