CQLA Conference CQLA Conference October 2013:October 2013:

Affidavits and the Rules of Evidence

Presenters:Gerald Byrne: Barrister-at-LawJordan Ahlstrand: Barrister-at-Law

TopicsTopics

1.1.Historical origins of affidavit evidence.Historical origins of affidavit evidence.

2.2.Affidavits and the rules of evidence generally.Affidavits and the rules of evidence generally.

3.3.Obtaining and admitting emails, Facebook Obtaining and admitting emails, Facebook messages and text messages into evidence.messages and text messages into evidence.

1.1.Case study.Case study.

Historical Origins of Affidavit Evidence Historical Origins of Affidavit Evidence

In the early to mid 1800’s efforts were made to In the early to mid 1800’s efforts were made to modernise evidence in the Equity Courts.modernise evidence in the Equity Courts.

The The Common Law Procedure Act 1854:Common Law Procedure Act 1854: Trial by Judge alone; andTrial by Judge alone; and Witnesses could be ordered to make an Witnesses could be ordered to make an

affidavit; andaffidavit; and Many of these reforms were mirrored in Many of these reforms were mirrored in

other legislation (for example the other legislation (for example the Criminal Criminal Procedure Act 1865)Procedure Act 1865)..

Described as an artificial mode of trial. Described as an artificial mode of trial.

Historical Origins of Affidavit Evidence Historical Origins of Affidavit Evidence

Queensland separates from NSW in 1859 and Queensland separates from NSW in 1859 and inherits the common law rules of evidence, and inherits the common law rules of evidence, and some Imperial Legislation. some Imperial Legislation.

Evidence and Discovery Act 1867 (Qld) Evidence and Discovery Act 1867 (Qld) serves serves Queensland Courts with little amendment for more Queensland Courts with little amendment for more than 100 years. than 100 years.

Common contemporary manifestations:Common contemporary manifestations: Civil proceedings commenced by Application Civil proceedings commenced by Application

(Chapter 2, Part 4 of the UCPR);(Chapter 2, Part 4 of the UCPR); Family law proceedings; and Family law proceedings; and Domestic violence proceedings. Domestic violence proceedings.

Affidavits and the Rules of Evidence Affidavits and the Rules of Evidence GenerallyGenerally

Civil proceedings:Civil proceedings: Evidence Act 1977 (Qld) – Evidence Act 1977 (Qld) – various provisions; various provisions;

andand Uniform Civil Procedure Rules 1999 (Qld) Uniform Civil Procedure Rules 1999 (Qld)

(“UCPR”) – Chapter 11, Part 7.(“UCPR”) – Chapter 11, Part 7.

Family law proceedings:Family law proceedings: Evidence Act 1995 (Cth)Evidence Act 1995 (Cth) – various provisions – various provisions;; Family Law Act 1975 (Cth) – Family Law Act 1975 (Cth) – Part XI; andPart XI; and Federal Circuit Court Rules 2001 (Cth) Federal Circuit Court Rules 2001 (Cth) – Part – Part

15, Division 15.4. 15, Division 15.4.

Affidavits and the Rules of Evidence Affidavits and the Rules of Evidence GenerallyGenerally

The relevance rule:The relevance rule: Common law; andCommon law; and Chapter 3, Part 3.1 of the Chapter 3, Part 3.1 of the Evidence Act 1995 Evidence Act 1995

(Cth)(Cth)..

The hearsay rule:The hearsay rule: Common law; and Common law; and Chapter 3, Part 3.2 of the Chapter 3, Part 3.2 of the Evidence Act 1995 Evidence Act 1995

(Cth)(Cth)..

Affidavits and the Rules of Evidence Affidavits and the Rules of Evidence GenerallyGenerally

The opinion rule:The opinion rule:Common law; and Common law; and Chapter 3, Part 3.3 of the Chapter 3, Part 3.3 of the Evidence Act 1995 Evidence Act 1995 (Cth)(Cth). .

The discretion to exclude evidence:The discretion to exclude evidence:Common law; Common law; Chapter 3, Part 3.11 of the Chapter 3, Part 3.11 of the Evidence Act 1995 Evidence Act 1995 (Cth)(Cth); and; andRules 5, 389A and 444 of the Rules 5, 389A and 444 of the Uniform Civil Uniform Civil Procedure Rules 1999 (Qld).Procedure Rules 1999 (Qld).

Obtaining and Admitting Emails, Facebook Obtaining and Admitting Emails, Facebook Messages and Text Messages into EvidenceMessages and Text Messages into Evidence

Evidence Act 1977 (Qld)Evidence Act 1977 (Qld):: Schedule 3 - meaning of “document”; Schedule 3 - meaning of “document”; Section 4 - meaning of “copy” of Section 4 - meaning of “copy” of

“document”;“document”; Section 5 - meaning of document purporting Section 5 - meaning of document purporting

to be of certain character;to be of certain character; Section 92 – admissibility of documentary Section 92 – admissibility of documentary

evidence; andevidence; and Proof of certain matters by affidavit – Part 7, Proof of certain matters by affidavit – Part 7,

section 104 definitions, and section 125.section 104 definitions, and section 125.

Obtaining and Admitting Emails, Facebook Obtaining and Admitting Emails, Facebook Messages and Text Messages into EvidenceMessages and Text Messages into Evidence

Evidence Act 1995 (Cth)Evidence Act 1995 (Cth):: Section 3, Dictionary Schedule - meaning of Section 3, Dictionary Schedule - meaning of

“document”; “document”; Chapter 2, Part 2.2 - proof of contents of Chapter 2, Part 2.2 - proof of contents of

document; and document; and Proof of certain matters by affidavit - Chapter Proof of certain matters by affidavit - Chapter

4, Part 4.6, Division 2.4, Part 4.6, Division 2.

Obtaining and Admitting Emails, Facebook Obtaining and Admitting Emails, Facebook Messages and Text Messages into EvidenceMessages and Text Messages into Evidence

Civil proceedings:Civil proceedings: Exhibits – section 435 UCPR.Exhibits – section 435 UCPR.

Family law proceedings:Family law proceedings: R15.28 - R15.28 - Federal Circuit Court Rules 2001 Federal Circuit Court Rules 2001

(Cth).(Cth).

Case StudyCase Study

Domestic Violence and Family Protection Act 2012 Domestic Violence and Family Protection Act 2012 (Qld):(Qld):

Sections 142, 145 & 189;Sections 142, 145 & 189; Background information; Background information; Historical acts said to constitute domestic Historical acts said to constitute domestic

violence;violence; Why necessary or desirable;Why necessary or desirable; Exhibit the relevant material; andExhibit the relevant material; and Put yourself in the shoes of the judicial officer Put yourself in the shoes of the judicial officer

considering the application.considering the application.

QUESTIONS?