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

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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

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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

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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

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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

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Minimising Risk

• Rely on uncontroverted facts
• Rely on your opponents facts
• Preparation

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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

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Preparing Witness Statements

• Structure
• The your words or theirs debate
• Annex exhibit documents

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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

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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

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Practical Exercise
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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

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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

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The main differences

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

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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

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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
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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

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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

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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)

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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?

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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)

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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)

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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)

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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)

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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)

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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)

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Conclusion

• Proper preparation is the key