Evidence law in Australia

Introduction

Practice relating to documents as evidence in legal proceedings in Australia is complicated and varies according to jurisdiction.

If the legal proceeding is in a federal court (that is, the High Court, Federal Court, Family Court or the Federal Magistrates Court) or an ACT court, the Commonwealth Evidence Act applies1. The New South Wales, Tasmanian and Victorian Evidence Acts generally mirror the Commonwealth Evidence Act and its admissibility requirements. In other jurisdictions, the laws of evidence may vary.

Some provisions of the Commonwealth Evidence Act also apply in State and Territory legal proceedings in relation to some documents. Commonwealth legislation (for example, the Archives Act 1983, Freedom of Information Act 1982, Privacy Act 1988 and Crimes Act 1914, has provisions about documents that may relate to their use in evidence. State or Territory legislation, policies and standards may also apply.

1 Rules of evidence for the Federal Magistrates Court are contained in Part 15 of the Federal Magistrates Court Rules 2001. Certain Evidence Act provisions do not usually apply to child-related proceedings (Section 69ZT of the Family Law Act).

The Commonwealth Evidence Act

The Commonwealth Evidence Act provides for documents created and maintained in paper and electronic form to be admitted in evidence before federal courts.

The Commonwealth Evidence Act relaxed and, in some cases, removed restrictions on evidence that can be admitted in proceedings so that a greater range of relevant evidence is available to courts for fact finding purposes.

In relation to documentary evidence, the Commonwealth Evidence Act:

  • abolishes the original document rule (also referred to as the 'best evidence rule'), replacing it with simple means of giving evidence of the contents of documents, including documents held in electronic and other non-paper forms;
  • includes a narrower hearsay rule and wider exceptions to that rule, providing for greater admissibility of hearsay evidence;
  • includes provisions for easier proof of, and presumptions about, business and official records, and documents recording an electronic communication; and
  • includes pre-trial procedures enabling litigants to test the weight of documentary evidence that might be given in proceedings.

With a greater range of evidence admissible in many Australian courts, agencies must consider the quality of evidence available in a legal proceeding and whether that evidence is likely to persuade a court to accept the Commonwealth's version of the facts.

The rules of evidence

The laws of evidence prescribe standards to which a fact must be proved:

  • in civil proceedings, facts must be proved on the balance of probabilities; and
  • in criminal proceedings, facts must be proved beyond reasonable doubt.

The rules of evidence govern what information is able to be placed before a court for determination of an issue. These rules influence how a party goes about proving its case.

Parties seek to persuade the court of a fact by producing evidence. In doing so, a party should consider three issues:

  • how to adduce (that is, put to the court) evidence of the fact;
  • whether the evidence is admissible (that is, whether the court will permit it to be given); and
  • the weight of the evidence (that is, how much importance the court will give to it in reaching its decision).

The rules of evidence are mainly concerned with the first two issues:

  • how information, in the form of 'evidence', is given or presented to a court; and
  • whether that information can be admitted to the proceeding.

The admissibility of evidence in any proceeding is subject to compliance with the rules of admissibility and the interpretation placed upon them by the presiding judge. Assessment of the quality of evidence, and therefore of the weight to be given to it, is also matter for the presiding judge in each case.

The distinction between admissibility and weight of evidence

Although evidence of information about a particular fact may be admissible, the court will not necessarily believe or act on that evidence.

If the information about a fact is the direct observation of a witness, the court may simply disbelieve the witness. This may occur for a number of reasons. For example, it may have been a long time since the events in question happened, the witness may give confused testimony, or may have some physical incapacity (e.g. poor eyesight) or have some personal inclination or motivation that causes the court to disbelieve their evidence (e.g. it may be shown that the witness is inclined to lie, or bears ill-will against someone connected with the proceeding).

More usually, evidence of information given in court will not be 'direct observation' evidence. Instead it will be evidence that suggests, or from which it can be inferred, that a particular fact occurred. In this regard, the weight of evidence of a record can be adversely affected if it is not contemporaneous with the events it documents (i.e. if it is created well after the events it purports to record).

Example: Minute to the Secretary

The Commonwealth, in litigation, seeks to prove that a certain conversation took place. The Commonwealth has located a Minute to the Secretary of the agency which quotes from a file note of the conversation. However the actual file note of the conversation cannot be found. The Commonwealth produces the Minute in evidence. That document is found to be admissible. The weight given to that evidence however may vary and depend on other evidence e.g. evidence by the author of the file note that the extract is a true extract, evidence that the file note was written at the time of the conversation.

Documentary evidence

The rules of evidence apply to an ordinary document in writing, documents written in braille or shorthand and, importantly for modern records management systems, a document that is in a digital format.

The term 'document' is defined in the dictionary to the Commonwealth Evidence Act to mean any 'record of information', and includes:

  • anything on which there is writing;
  • anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
  • anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and
  • a map, plan, drawing or photograph.

The definition of a 'document' also includes any part, copy, reproduction or duplicate of a document. Metadata, as information embedded or associated with a document, is generally considered part of a 'document'.

Example: Draft Versions of a Record

An agency involved in litigation has been ordered to give discovery of documents related to a particular issue.

The agency performs reasonable searches across their records and identifies a number of records, as documents, that are potentially discoverable. Searches have also identified draft versions of a potentially discoverable record. A draft version of a record falls within the definition of a 'document' under the Commonwealth Evidence Act and can be subject to an order for discovery.

The Commonwealth Evidence Act abolished the 'original document rule', which required the production of the original document in writing. The Commonwealth Evidence Act permits evidence of the contents of a document to be given in one of a number of alternate ways. These ways include tendering:

  • the original document, which may be physical or digital;
  • a copy (physical or digital) of the document produced by a device (such as a photocopier or a computer) that reproduces the contents of documents;
  • a transcript of a document recording words (such as an audio tape or shorthand notes);or
  • a business record being a physical or digital extract, summary or copy of the document.

Other ways may be used to give evidence of official documents, and documents that are unavailable to a party in the proceeding, for example, where they have been lost or destroyed.

While it is not necessary that the original document be produced, parties may still be required to authenticate evidence of the contents of documents tendered in one of these ways. For example, in relation to a document in writing that is signed, it remains necessary to lead evidence (if the point is contested) that the signature appearing on the document is the signature of the person who has purported to sign it. In the case of digital records, it may be necessary to give evidence that the digital record is what it purports to be.

While several provisions of the Commonwealth Evidence Act facilitate this authentication process, the Act also set out procedures under which a party may test the authenticity of evidence of the contents of documents led under one of the alternate ways in a proceeding.

Usually, these procedures would be used by a party against whom evidence of the contents of a document is, or might be, led in a proceeding.

The procedures, which can be set in motion before the hearing of a proceeding, may result in the making of court orders against the party leading evidence of the contents of the document, including an order that:

  • the original document be produced;
  • a party be permitted to examine, test or copy a document;
  • a person concerned in a records management system be called to give evidence; and/or
  • in the case of a records management system, that a party be permitted to examine and test the way in which the document was produced or has been kept.

Example: Systems Reliability

An agency involved in litigation has presented a digital document as evidence from a system. The document is considered relevant to a key issue in the proceeding. However, the system in which the document was identified has not been managed in accordance with the agency’s business practices for some time.

Based on an apparent discrepancy in the timestamp metadata (date created, etc.) associated with the document when compared with other documents presented as evidence, the opposing party has scrutinised the reliability of the system where the digital document was stored.

To address issues raised by the opposing party, the agency is required to divert resources from agency business and engage an independent expert to present evidence in relation to the reliability of the system, and authenticity of the presented document.

The ultimate sanction for failure to comply with such an order is that the evidence of the contents of the document is not to be admitted in the proceeding.

Not all jurisdictions have removed the requirement for the original document to be provided. Where the agency needs to provide evidence in a proceeding before a court that does not apply the Commonwealth Evidence Act, they should seek specific legal advice.

How documentary evidence may become inadmissible

A separate issue from how evidence of information in a document can be given is whether the court will permit the evidence to be given (that is, whether the evidence is admissible in the proceeding before the court).

Whether the evidence is admissible depends, initially, on whether it is relevant to a fact in issue in the proceeding. If relevant, evidence may nevertheless be inadmissible if it is excluded by a rule that provides for the exclusion of particular kinds of evidence (for example, the rule against hearsay evidence, the ‘similar fact evidence’ rule, and the rule against opinion evidence).

The most important exclusionary rule in relation to documents is the hearsay rule. The hearsay rule applies when evidence of what is contained in a document is being used to prove some fact asserted in it.

Example: Note for file

Midway through the proceeding the file note quoted in the Minute to the Secretary is found. It contains the following words:

“Telephone conversation from James at agency X. James said that Alistair told him that he saw Pip taking home a secret work file. He thought that he saw the numbers and letters ‘x100 and MOJ’ on it. Five days later when news of a leak came through, it became apparent that the document leaked was from file x100908574, the SMOJK file.”

Unless an exception to the hearsay rule applies, the document is inadmissible to prove that Pip took home the x100908574 file and that she leaked from it.

The hearsay rule under the Commonwealth Evidence Act applies to any statement made by a person other than while giving evidence that is led or given to prove the existence of a fact that it can be reasonably supposed that the person intended to assert by the statement.

There are many exceptions to the hearsay rule under the Act including:

  • evidence admitted for a non-hearsay purpose (where the statement is relevant for a purpose other than to prove the existence of a fact that the person intended to assert, for example, where the fact that the statement was made is relevant). In such a case evidence of the statement can also be used as evidence of what is asserted by the statement;
  • first-hand hearsay, the scope of the exceptions depending upon whether the proceeding is civil or criminal and whether the person who made the statement is available or not to give evidence;
  • some categories of more remote hearsay (that is, where the evidence is not necessarily first-hand hearsay), such as some statements in business records, some tags and labels or writing attached to, or placed on, objects (including documents) in the course of business and representations in electronic communications regarding the identity of the sender or receiver or time or date the communication was sent; and
  • an admission made by a person who is or becomes a party to the proceeding.

Some procedural safeguards apply for some of these categories of hearsay evidence. For example, for notifying the other parties if the person who made a statement admitted under one of the exceptions for first-hand hearsay is not to be called to give evidence in the proceeding, and other procedures under which a party may be required to call as a witness the person who made the statement.

The rules of evidence in Commonwealth tribunals

The admissibility rules in the Commonwealth Evidence Act which determine whether evidence of information can be given in a proceeding, also apply to proceedings before ‘a person or body ...that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence’.

The majority of Commonwealth tribunals are not required to apply the laws of evidence. Most commonly, the statute under which the tribunal is created includes a provision to the effect that the tribunal is not bound by the rules of evidence, but may inform itself as it thinks appropriate.

This will not necessarily mean that the rules of evidence are irrelevant to tribunal proceedings. Tribunals may, for example, have regard to what would be admissible had the proceeding been before a court, especially when the outcome of the proceeding may be subject to judicial review. In any event, a tribunal (like a court or, indeed, any person or body with decision-making functions or responsibilities) is unlikely to believe and act on records or other documents unless they can be demonstrated as accurate and reliable.

Implications of the Electronic Transactions Act for evidence

The rules of evidence are unaffected by the Electronic Transactions Act 1999 (Cth).

The Electronic Transactions Act intends to promote confidence in electronic transactions by confirming that a permission or requirement under a law of the Commonwealth to provide information in writing, a signature, or to retain information can be met by electronic means unless specifically excluded by other Commonwealth legislation, or the Electronic Transactions Regulations 2000 (Cth). For example, the Electronic Transactions Act provides that where a person is required to provide a document, the provision of that document will not be invalid because it took place in an electronic communication. Similarly, it enables the recording, and retention of information in an electronic form to meet statutory requirements to retain a written record.

The Electronic Transactions Act states that the integrity of information contained in a document is maintained if, and only if, the information has remained complete and unaltered, apart from the addition or endorsement, or any immaterial change which arises in the normal course of communication, storage or display.

There are a number of exclusions from the Electronic Transactions Act, some of which are widely used in evidence, such as Statutory Declarations. In these cases, the original form of the record is still required for evidence.

Copyright National Archives of Australia 2017