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 A general ouline of the laws of evidence |
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Author: Robert Wilson
and Robert Wilson
of
5th Floor Wentworth Chambers
This is an extract from Lawbook Company's Nutshell: Evidence by Robert Wilson (Sydney: LBC, 1999, 1st ed). LBC Nutshells are the essential revision tool: they provide a concise outline of the principles for each of the major subject areas within undergraduate law. Written in clear, straightforward language, the authors clearly explain the principles, and highlight key cases and legislative provisions for each subject.
The rules of law that control the admission of evidence in legal proceedings and which circumscribe how that evidence, once admitted, may be used are based on considerations of fairness and reliability. Whilst the ultimate object of reaching a decision in a fair manner on the true facts of a case may not always ensue, the laws of evidence nevertheless pursue this object as far as they are able. Given that human conduct is infinitely variable, these rules have become quite detailed during the course of legal history. Careful and considered study is therefore needed to understand them fully. However, the fundamental task is to grasp the principle involved in each rule as only then is one able to apply each rule confidently. It is this task that this text is primarily concerned with, unfortunately at the expense of a complete exposition of all relevant principles.
It is a worthwhile exercise to reflect for a moment on the last time that somebody told you a story that you did not entirely believe. Once you have conjured up a recollection of that conversation, identify what parts of that conversation you disbelieved and then ask yourself why? Were there parts of the story that you did believe and, if so, why? Did you ask any questions of the storyteller seeking further information which would enable you to test those parts of the story that you did not believe? Did you finally reach any firm conclusions that the parts of the story that you did believe were definitely true? As to the other parts of the story that you initially disbelieved, did you form any views that some of those parts were more probably than not true, that is, sufficiently true so that it was safe to act upon them? Did you form any firm belief that other parts of the story were definitely untrue? Did you draw any inferences, from those parts that you believed, about matters that the story teller had not related to you? For example, did you infer that some fact, other than those told to you in the story, must have occurred in order to explain the story? Finally, were there parts of that story that you did not know whether to believe or disbelieve no matter how hard you tried to reason things out?
There are three aspects of this exercise that should be noted as they are central to this study of the laws of evidence. The first is the persuasion process itself. What was it that persuaded you that parts of the story were true? It is important to actually experience the subjective nature of this aspect (see Briginshaw (1938) CLR). Secondly, the inferential process. Why was it that you were able to draw inferences about matters of which you had not been told? This aspect is quite different to the persuasion process. Thirdly, the probability aspect. Even though you were unable to decide whether a particular part of the story was definitely true, why was it that you were able to decide that that part of the story was most probably true? If you carefully examine your answers to these questions it will demonstrate how the process of assessing evidence and reaching a decision on the facts is deeply embedded in the belief systems that we all have. In addition, it will reveal to you how many of the principles with which this book is concerned actually work. This is not a trite exercise as it is what actually happens in our courtrooms every day. The rules of evidence are not just logical and technical rules as they derive much of their meaning from the persuasion process which they in turn regulate.
The statement that the operation of the rules of evidence is deeply embedded in our belief systems may sound somewhat devoid of any real meaning. However, unless a full appreciation of this point is developed the principles of evidence will remain merely logical tools and their true operation, at the persuasive level, will never be understood. Assume that the story that you have reflected upon is one where an old and trusted friend speaks about a problem that he or she is experiencing. Normally when friends speak of such things we accept them as being true. The reason for this is our basic belief that if a friend speaks about something that is wrong with their lives they are being genuine. We accept that the problem exists, although we may well question whether our friend has correctly assessed the cause of the problem or has developed an appropriate solution to it. Of course, if we suspect that our friend has an ulterior motive we may well question the whole story. Compare your own state of mind though arising from being told by your friend that she is nervous when meeting strangers with your state of mind arising from actually seeing your friend acting in a nervous way when she met for a stranger on an occasion when you were present. The belief formed from your observation has an element of certainty about it that is not really there when you have only been told about the problem. This difference is expressed in the common sense maxim that "seeing is believing".
Consider now the implications that the above reflections have when they become enmeshed in our legal system. The resolution of all legal disputes depends upon past events, that is, upon what human beings have done and said in the past, and the context within which those acts occur. Therefore, as lawyers we are always interested in things that have happened in the past. Such things, of course, the tribunal of fact (whether it be a jury or judge sitting alone) will never have observed. Therefore the tribunal must hear it from those who did. The tribunal must then determine which account of such past events it will accept as being reliable and true. Generally, all the past events that gave rise to the dispute we are dealing with are relevant to the resolution of that dispute. However, this is actually too general as it is the principles of substantive law that ultimately tell us which past events are relevant and which therefore need to be proved. These considerations constitute the fundamental paradigm for legal dispute resolution in our type of judicial system.
The substantive rules of law that govern our everyday behaviour and which are applied in courts of law when our behaviour brings us into dispute with our neighbours, have the common feature that they all operate upon factual circumstances, that is, upon what people have done and said in the past, and the circumstances in which those acts have occurred. These substantive rules of law dictate, by the way in which they are formulated, what facts must be proved to in order to bring them into operation. For example, a plaintiff may be required by a rule of substantive law to prove that the defendant, at some time in the past, made a representation to the plaintiff that, at that time it was made, was in fact false.
A moment's reflection will show that basically the only way that anyone can ever really know that an event happened in the past is to personally observe its happening. The tribunal of fact is never in this position. Therefore, in a courtroom, witnesses to the fact are called to state what they observed at the time that the event, or fact, is alleged to have happened. Here, the Court is considering the record of the event contained in the witness' memory. However, the happening of events are also recorded by other means, for example by photographic film, by magnetic recording and by writing. The laws of evidence then are concerned with whether, and the extent to which, these various means of recording an event may be used in a court law in order to prove a relevant fact. Some means of recording are, depending upon the circumstances, more accurate than others.
Events that are not recorded pose a particular type of problem. Such events may simply arise because they were not observed by any known witness or they may be an event, such as a person's state of mind, that is not capable of direct observation. In cases like these, the only way to establish the existence of an unrecorded fact is by inference. That is, by being persuaded by other facts, which have been observed and recorded, that the unrecorded event in truth must have occurred. Such other facts are known as circumstantial evidence.
The nature of evidence
In our everyday lives we all know what evidence is. When a friend asserts a fact we implicitly test the truth of that assertion, that is whether that fact did or did not happen. Generally, this testing process involves finding and assessing evidence that the fact truly did or did not occur. We may simply accept what a friend tells us or we may investigate further and inquire whether or not that friend was an eyewitness. If this be done we are investigating the source of that friend's knowledge. The situation is much the same if our friend, rather than asserting of fact, expresses an opinion about something. Essentially we are looking for reliable information that is capable of persuading us that the asserted fact, or the proffered opinion, is true or not. If, after full inquiry we cannot be persuaded one way or the other we are left in a state of uncertainty. This type of process is starkly obvious when we know very little ourselves about the fact or the opinion that our friend has expressed. Note that quite often during our search for reliable information will come across material that appears rather insignificant for the task that we have at hand. This type of material has very little weight with respect to persuading us as one way or the other.
The law follows a somewhat similar course. However, there is a very significant difference. In our everyday lives we are free to enquire as we will and we may take any type of information into account, whether it be information about what some person has done or it be simply the views that another person has about the subject or our enquiry. Legal enquiry however is mainly concerned with seeking out information in the form of facts, that is events or states of affairs that occurred or existed at a relevant time, so that, upon the basis of such facts, a court of law may come to its own conclusion. For example, the law will not seek out confirmatory material in the form of someone else's opinion, save in the particular case where expert opinion is admissible. Note that sometimes the word "evidence" is used to refer to the facts or events we are looking for and at other times it is used to refer to the means of proving those facts, that is, the method whereby the event has been recorded. Strictly, it should refer to the latter but for convenience is used in both senses depending upon context.
In addition, a court of law must enquire in accordance with the laws of evidence. The legal inquiry process therefore is circumscribed by these laws. A brief overview now of the principal laws of evidence with which we will be concerned will provide a useful schematic framework.
Robert Wilson
BA LLM
Barrister
Wentworth Chambers
1999
March, 2001
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