Adducing evidence – documents
Dictionary Parts 1&2
A document is taken not to be available if it cannot be found after reasonable inquiry, it was destroyed, it would be impractical to prove it, production would render person liable to conviction.
Documents include anything on which there is writing, marks or perforations that have meaning. Also includes anything from which sounds, images or writing can be reproduced. Maps are included. Also refers to part of a document or a copy, reproduction or duplicate.
Definitions s47
(1) A reference in this Part to a document in question is a reference to a document as to the contents of which it is sought to adduce evidence.
(2) A reference in this Part to a copy of a document in question includes a reference to a document that is not an exact copy of the document question but that is identical to the document in question in all relevant respects.
Proof of contents of documents s48
This section sets out a variety of ways in which the contents of a document can be proved, including tendering the original or a copy (1)(b) or a transcript etc.
(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods: (a) adducing evidence of an admission made by another party (b) tendering a doc. that: (i) is/purports to be a copy of the doc. in question; & (ii) has been produced/purports to have been produced, by a device that reproduces the contents of doc’s; (c)…tendering a document that is or purports to be a transcript of the words; (i.e. tape recording) (d) if the doc. in question is an article/thing on or in which info. is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it - tendering a doc. that was or purports to have been produced by the use of the device; (eg a computer) tendering a document that: (i) forms part of the records of or kept by a business. (f) if the document in question is a public document-tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed: (i) by the Government Printer or (ii) by authority of the government or (iii) by authority of an Australian Parliament,
(2) Subsection (1) applies to a document in question whether the document in question is available to the party or not.
(3) If the party adduces evidence of the contents of a document under paragraph (1) (a), the evidence may only be used: (a) in respect of the party's case against the other party who made the admission concerned; or (b) in respect of the other party's case against the party who adduced the evidence in that way. (4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by: (a) tendering a document that is a copy of, or an extract from or summary of, the document in question; or (b) adducing oral evidence of the contents of the document in question.
Documents in foreign countries s49
No paragraph of subsection 48(1) (other than paragraph 48(1)(a)) applies to a document that is in a foreign country unless: (a) the party who adduces evidence of the contents of the document in question has, not less than 28 days before the day on which the evidence is adduced, served on each other party a copy of the document proposed to be tendered; or (b) the court directs that it is to apply.
Proof of voluminous or complex documents s50
(1) The court may direct that a party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if: (a) application is made to it by the party before the hearing concerned; and (b) it is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume and complexity of the documents in question.
(2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has: (a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary; and (b) given each other party a reasonable opportunity to examine or copy the documents in question.
(3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section.
Does not deal with admissibility – may be able to make an objection to the reception of the document into evidence in that its just not relevant.
Original document rule abolished s51
The principles and rules of the common law that relate to the means of proving the contents of documents are abolished.
• s51 abolishes the Common Law procedural rule that the contents of a document can only be proved by tendering the original.
Butera v DPP (1987) (Not obsolete predates Evidence Act – essentially discusses best evidence rule OLD RULE: now s51 has abolished this rule)
Facts: Butera and four others were charged with conspiring to traffic heroin.
• The prosecution case included the contents of a conversation between some of the alleged conspirators which had been tape-recorded - most of the conversation was in Punjabi (note English is fairly homogenous in that it does not have various dialects as in other languages) interpreters testified as to the contents of the conversation, and transcripts and written translation were provided to jury.
• When the interpreters gave their testimony the jury followed from copies of the translations. These translations were tendered in evidence and went with the jury into the jury room. The issue on appeal was the admissibility of the translations. (as they are not primary evidence – untranslated tapes would be the best evidence)
Held: A tape is admissible only because it is capable of being used to prove what is recorded on it by being played:
• A transcript can be admitted only to aid the understanding of the in-court testimony (or playing of the tape) - in the view of the otherwise impossibility of for the jury of appreciating the cross-examination.
• The best evidence rule was departed from in that the court required that the tape be played. The tape was indistinct, the court would possibly allow an ad hoc expert – who is to say that translator is providing the best evidence. Transcripting is also a problem as it relies on the transcriber. But, importantly, jury can not be expected to understand tape if it is in a foreign language and is indistinct. Evidence Act now applies for this although does not apply for when a tape is indistinct and so Butera is still important in these cases.
R v Cassar; R v Sleiman [1999] (Objecting to tendering transcript; s48(1)(c) )
Facts: Personal and phone conversations between Mr Sleiman and Ms Cassar were secretly recorded by a listening device. Under Butera, they could tender transcript for the apartment conversation as it was indistinct. The telephone conversation was clear and therefore only the tape would need to be tendered without a transcript.
• The recordings of the personal conversations were indistinct, although the phone conversations were clear - a police officer testified that he played the tapes many times and was satisfied that they were accurate transcripts.
• The accused objected to the tendering of the transcripts of the tapes s48 of the EA allowed the adduction of evidence by tendering the document (including tapes of sounds) that is or purports to be transcript of the words.
Held: Per Sperling J: s48(1) allows a document that purports to be a transcript of words recorded on a tape to be admissible to prove the conversation where a tape is indistinct, a transcript made by an ad hoc expert being a person qualified only by having listened to the tape many times, may be used for this purpose. Has no restrictions such as Butera, rather, a liberal approach.
NAB v Rusu [1999] NSWSC (Meaning of s51 and s48)
Facts: NAB accused Rusu of stealing money from its safe.
• The bank tried to tender a document that was parts of a transaction history of one of the alleged accomplice’s bank accounts showing he had paid $2, 850 into it.
• The document did not identify the bank or the customer other than by their account number
Held: The documents were inadmissible because the judge was not satisfied on the balance of probabilities that they were what they alleged to be.
• Per Bryson J: Section 51 does not abolish or in any way affect the need to prove that a document tendered is the document which it purports to be, and s 48(1) does not authorise the adduction of evidence merely by tendering a document in the absence of any evidence establishing what the document is.
NB Adducing evidence does not necessarily make evidence admissibile – must overcome the hurdles of s 57, 55, 59, 69.