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Evidence: The Courts and the Commission - a comparison

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Evidence: The Courts and the Commission - a comparison Andrew Watson Maurice Blackburn Cashman Introduction We re going to do three things: General Rules of ... – PowerPoint PPT presentation

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Title: Evidence: The Courts and the Commission - a comparison


1
Evidence The Courts and the Commission - a
comparison
  • Andrew Watson
  • Maurice Blackburn Cashman

2
Introduction
  • Were going to do three things
  • General Rules of Preparation wherever you are
  • Practical exercise
  • The main differences between evidence in Courts
    and the Commission

3
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

4
The process of Fact Finding
  • Event Occurs and is Witnessed
  • Witness speaks to Advocate
  • Advocate selects whats 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
    whats admissible
  • Witness is cross-examined
  • Witness is re-examined
  • Court finds fact

5
Evidence Risk and Uncertainty
  • Every 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 thats
    important and relevant
  • The cross examination may lead to the witness
    being disbelieved
  • The Court may get it wrong

6
Minimising Risk
  • Rely on uncontroverted facts
  • Rely on your opponents facts
  • Preparation

7
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
    dont have any of theirs
  • Deal with your opponents case
  • Explain the process to the witness

8
Preparing Witness Statements
  • Structure
  • The your words or theirs debate
  • Annex exhibit documents

9
Leading Evidence Viva Voce
  • Avoid if possible
  • Plan out carefully
  • Dont 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

10
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

11
Practical Exercise
12
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

13
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

14
The main differences
  • The Court wont posses any specialist knowledge
  • Relevance will be a stricter hurdle
  • The Hearsay exclusion
  • The Opinion Rule

15
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

16
ADMISSIBILITY OF EVIDENCE
Is the evidence relevant? (See Part 3.1.)
THE EVIDENCE IS NOT ADMISSIBLE
No
Yes
Does hearsay rule apply? (See Part 3.2. See also
Part 3.4and Part 3.8)
Yes
No
Does the opinion rule apply? (See Part 3.3. See
also Part 3.4 and Part 3.8)
Yes
No
Does the evidence contravene the rule about
evidence of judgments and convictions? (See Part
3.5.)
Yes
No
Does the tendency rule or the coincidence rule
apply? (See Part 3.6. See also Part 3.8)
Yes
No
Does the credibility rule apply? (See Part 3.7.
See also Part 3.8)
Yes
No
Does the evidence contravene the rules about
identification evidence? (See Part3.9.)
Yes
No
Does a privilege apply? (See Part 3.10.)
Yes
No
Should a discretion to exclude the evidence be
exercised? (See Part 3.11.)
Yes
No
THE EVIDENCE IS ADMISSIBLE
Yes
17
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

18
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

19
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)

20
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?

21
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)

22
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)

23
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)

24
Exceptions to the Opinion rule
  • Expert evidence (s.79)
  • Admissions (s.81)
  • Lay opinion necessary to understand a persons
    evidence (s.78)
  • Evidence admissible otherwise than as opinion
    (s.77)

25
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)

26
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)

27
Conclusion
  • Proper preparation is the key
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