Evidence: The Courts and the Commission - a comparison

Andrew Watson

Maurice Blackburn Cashman

IntroductionWe’re going to do three things:

General Rules of Preparation wherever you are

Practical exercise The main differences between

evidence in Courts and the Commission

Evidence wins cases Cases usually won on facts not law But what that strictly means is

cases are won on findings of fact Courts/Tribunals/practitioners can

never be sure that the facts as found actually occurred

The process of Fact Finding Event Occurs and is Witnessed Witness speaks to Advocate Advocate selects what’s important/admissible Witness gives evidence in chief Court selects from what advocate has selected

and what witness has given as evidence in chief as to what’s admissible

Witness is cross-examined Witness is re-examined Court finds fact

Evidence = Risk and UncertaintyEvery stage of the previous process inheres with risk and uncertainty

The witness will have a faulty recollection and may deliberately not tell the truth (in their account to the advocate, the Court or both)

The advocate may exclude evidence that’s important and relevant

The cross examination may lead to the witness being disbelieved

The Court may get it wrong

Minimising Risk Rely on uncontroverted

facts Rely on your opponents

facts Preparation

Preparing your evidence Take a detailed proof Remember your case theory Structure the evidence Prepare a witness statement (if possible) Use documents - your opponents

wherever possible, yours (subject to admissibility) if you don’t have any of theirs

Deal with your opponents case Explain the process to the witness

Preparing Witness Statements Structure The “your words or theirs”

debate Annex exhibit documents

Leading Evidence Viva Voce Avoid if possible Plan out carefully Don’t lead What, why, when, where and who Avoid the lazy “and then what happened” If the witness forgets have another go

(differently phrased) if still unsuccessful maybe come back later

Preparing For XXN

Is absolutely critical to successful cross-examination

Is a whole topic in itself; and Is not going to be covered in this

lecture

Practical Exercise

The rules of evidence

Are the default position for Courts Are not the default position for the

Commission In the Federal Courts and NSW

are primarily to be found in the Evidence Act 1995 in each jurisdiction

Our Focus

Evidence Act 1995 (Cth.) The main differences between

Courts and the Commission This is not a comprehensive review

of the law of evidence In particular we only consider civil

proceedings

The main differences

The Court won’t posses any specialist knowledge

Relevance will be a stricter hurdle The Hearsay exclusion The Opinion Rule

The Courts are not Specialists Neither the Federal Court nor the

Federal Magistrates Court are necessarily presided over by industrial specialists

You should not assume they know anything about industrial instruments or realities or that they have any understanding of your industry or sector

Explain everything in what will seem like kindergarten level detail

THE EVIDENCE IS ADMISSIBLE

Is the evidence relevant? (See Part 3.1.)

Does hearsay rule apply? (See Part 3.2. See also Part 3.4and Part 3.8)

Does the opinion rule apply? (See Part 3.3. See also Part 3.4 and Part 3.8)

Does the evidence contravene the ruleabout evidence of judgments and

convictions? (See Part 3.5.)

Should a discretion to exclude theevidence be exercised?

(See Part 3.11.)

Does a privilege apply? (See Part 3.10.)

Does the evidence contravene the rules about identification evidence?

(See Part3.9.)

Does the credibility rule apply? (See Part 3.7. See also Part 3.8)

Does the tendency rule or the coincidence rule apply?

(See Part 3.6. See also Part 3.8)THE EVIDENCE IS NOT ADMISSIBLE

Yes

No

No

No

No

No

No

No

No

No

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

ADMISSIBILITY OF EVIDENCE

Relevance - the test

Section 55(1) provides:

“The evidence that is relevant in a proceeding is evidence that if it were accepted , could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”

Relevance is stricter

Facts in issue are defined by pleadings and are by nature less ambulatory than matters in a dispute/within ambit

Agreements are interpreted by reference to the objectively ascertained intention of the parties at the time of the agreement - subsequent conduct is inadmissible, fairness is not an issue

Hearsay

Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert

s.51(1)

The key terms

“Representation” includes words spoken or written and implications drawn from words or inferred from conduct

“To prove the existence of the asserted fact” means evidence of previous representation may be adduced for other purposes (must still be relevant and otherwise admissible). Note s.60

Did the maker of the previous representation intend to assert the existence of the fact?

The important Hearsay exceptions Admissions (s.81) Business records (s.69) Interlocutory Proceedings (s.75) Evidence admitted for a non-

hearsay purpose (s.60) Contemporaneous statement re

health feelings, sensations intention, knowledge or state of mind (s.72)

The less important Hearsay exceptions Maker not available (s.63) Maker available and undue expense etc

(s.64(2)) The fresh in the memory exception

s.64(3) Tags, labels etc, (s.70) Electronic communications

origin,destination and time details (s.72) Reputation of public or general rights

(s.74)

Opinion

Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: s.76(1)

Exceptions to the Opinion rule Expert evidence (s.79) Admissions (s.81) Lay opinion necessary to

understand a person’s evidence (s.78)

Evidence admissible otherwise than as opinion (s.77)

Credibility

Evidence relevant to credibility only is inadmissible (s.102)unless:

adduced in XXN (s.103); rebutting certain denials (s.106); re-establishing credibility put in

issue (s.108) where hearsay has been admitted

and maker not called(s.108A)

Other matters

Tendency and coincidence evidence (part 3.6)

Privilege The discretion to exclude evidence

(Part 3.11) The rules regarding reviving

memory (ss.32 and 34)

Conclusion

Proper preparation is the key