Adducing evidence

Where does evidence come from? There are 2 sources of evidence:

Witnesses
Documents

Each source has its own unique advantages and disadvantages. So each have their own unique considerations, which I will deal with in turn.

Witnesses To be able to take the affirmation or oath, and start answering questions, a witness has to be both competent to give evidence, and compellable. The starting point is section 12, which says, simply, that everyone is competent and compellable. So, what you might be looking for are exceptions.

Competence

So what is important here, is whether any of the exceptions apply. Exceptions as to competence fall into three categories (s13):

Those who can’t understand questions
Those whose answers can’t be understood
Those who can’t understand the obligation to tell the truth

If we take the example of people who don’t speak English as a first language, we can imagine variations on the first two themes. For example, a person may not understand enough English to understand the questions being asked of them. Or they may understand enough English to understand the question, but not be able to express themselves in English, and thereby make themselves understood. Note that this is an example of a “reduced capacity” which can be overcome by having an interpreter in court (so look at s14).

Note also, that a person may be competent in some areas, but not in others: s13(3). It is not an all-or-nothing proposition. For example, I remember watching a witness in a trial, whom I later found out had an intellectual disability. He was borderline in both categories (only the transcribers could clearly understand what he was saying). But in particular, it was apparent, from his cross-examination, that he couldn’t draw a distinction between what he had told police about an earlier incident, and his recollection of the incident itself. So it quickly became apparent that it would be impossible to cross-‐examine him about prior inconsistent statements – he was not capable of understanding the questions.

Note also, a lack of competence to give sworn evidence does not prevent the witness giving unsworn evidence, so long as the requirements of s13 are met.

Compellability

Sections 14 to 19 give you a laundry list of exceptions to compellability. I’ve mentioned s14 already. The judges and jurors exception isn’t likely to come up all that often. But as we’re in a criminal law context, ss17-19 do require some attention, particularly for those of us unfortunate enough to have clients charged with contravening AVOs.

Authenticity

Authenticity is a funny beast. Essentially the issue with authenticity is:

Is it what it purports to be?

For a long time, NAB v Rusu held sway, holding out authenticity as a precondition to admissibility, and suggesting that judicial inferences can’t assist in determining authenticity (despite s58). But, more recently, see ACCC v ANZ. Odgers rightly notes that there is nothing in the Act which specifically requires that authenticity be established, and that it is particularly hard to reconcile with s57, but it is comes from tactical pressures.

Since this is a working guide though, let’s put aside the academic issue. The fact is that authenticity can be easily established. Put the witness from whom the document comes (or who knows something about it), and say the following:

“I show you a document”
“Do you recognise that document?”
“What is it?”
“How do you know that?”
“I tender the <label>.”

I learned that series of questions in the Bar Course, in late 2013. I have followed ever since. But I am constantly surprised at how few of my opponents seem to follow this approach. For example, saying this in examination in chief:

"I show you a copy of your birth certificate"

Strictly speaking, that is leading in the witness, and is objectionable. It's also lazy.