Primary,Secondary and Documentary Evidence

 

 

Analyse and apply the law of evidence write answer of question given in element 1,2 and 3.

Element 1

1.1    Provide a definition of ‘evidence’

 

1.1 The word evidence in Latin is evidentia, which literally means that to show something clearly for ascertaining something or proving something. So, evidence is that part of law which helps in proving something or disproving the existence of certain other things. So, before the Court of Law, when one party alleges some facts, is borne upon to prove the existence of that facts, i.e. through evidence. But, what is evidence to a common man, may not be evidence before a Court of Law. So, evidence is that legal aspect which helps the Court to satisfy itself in seeking the truth based on the facts which are disputed before it. 

 

1.2    Provide an example of the following types of evidence,Real evidence ,Oral evidence ,Direct evidence ,Circumstantial evidence ,Original evidence ,Hearsay evidence ,Primary evidence ,Secondary evidence and Documentary evidence.

 

1.2 a.  Real evidence- Real evidence is that evidence which have direct association with the facts of the case and is tangible. So, a murder weapon is an example of real evidence. (BOYES -v- COLINS , 2000)
b.    Oral evidence- The statements which is permitted by the Court from the witness based on the truth, relying on the facts of the case is Oral Evidence. So, when a witness states that he heard some noise of explosion or he heard some conversation, then those statements are the oral evidence. (North Steyne Investments Pty Ltd v Raffaella Lina Rapone, 2010)
c.    Direct evidence- Direct Evidence leads and helps the Court to decide matter in front of it, i.e. the issue. So, when a person sees a crime happening, then the evidence of that person, becomes the direct evidence. (The Secretary of the Treasury (Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales , 2014)
d.    Circumstantial evidence- The series of facts are so arranged, so as to reach the decision, but do not emphatically points at the culpability of the accused is the circumstantial evidence. So, when A threats to kill B, and B eventually dies an unnatural death, then the threat so given by A is example of circumstantial evidence. (SMITH -v- THE STATE OF WESTERN AUSTRALIA , 2005)
e.    Original evidence- when a person makes a statement before the Court only to prove that certain action was actually made, then it constitutes an original evidence. So, if a witness testifies under a claim for slander, that the he actually heard A defaming the claimant, then that amounts to original evidence. (DIRECTOR OF PUBLIC PROSECUTIONS v FERNANDO MANUEL PAULINO, 2017)
f.    Hearsay evidence- This is the grey area, where the witness states that, he has neither seen anything nor have heard anything personally, then that statement amounts to hearsay evidence. So, if A tells that he is going to kill B, and if this statement is used before the Court to prove that A killed B, then it becomes hearsay evidence. (Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd , 2002)
g.    Primary evidence- The records which provides the exact original material of something, say a biography or a manuscript, then that is the primary evidence. (TRANDOS & ORS -v- WESTERN AUSTRALIAN PLANNING COMMISSION , 2002)
h.    Secondary evidence- The photocopied matter or extracted manually or electronically from a primary evidence is the secondary evidence. So, if a manuscript is typewritten and is produced before the Court in the absence of primary evidence, then that evidence will be considered as the secondary evidence.  (Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd , 2002)
i.    Documentary evidence- Evidence in the form of documents are documentary evidence. So, proof of address or photo identity card are the examples of documentary evidence. ( Mining Equipment “Minquip” Pty Ltd v Alfagomma Australia Pty Ltd, 2005)

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1.3 Why do we have rules and court procedures regarding evidence?

 

1.3    We have rules and court procedures regarding evidence, because, they help in securing the procedural fairness in the administration process of it and in so doing, the unjustifiable expenses along with delay relating to that can be avoided. Again, the rules and procedures relating to evidence help in determining the truth in a just and proper manner, without jeopardizing any party. (MAJID KARAMI KAMASAEE v COMMONWEALTH OF AUSTRALIA & Ors, 2016)

 

1.4 When will an Accused person submit a ‘no case to answer’?

 

1.4    Accused person can submit a no case to answer, once the prosecution witnesses are heard and the case is closed for the prosecution, to the Judge, in the absence of the Jury. The logic behind this is that, the accused is asking the Judge to inform Jury to declare the accused not guilty, and that is to be done without hearing the accused, based on the prosecution being incapable of providing sufficient charge to support their case. (DEPARTMENT OF CONSUMER AND EMPLOYMENT PROTECTION -v- BAYSWATER CAR RENTAL PTY LTD , 2007)

 

Element 2

2.1 What is the standard of proof in a civil case and a criminal case?

 

2.1 There are two separate standards of proof for criminal and civil cases. To prove beyond any reasonable doubts is followed in criminal cases, which requires a higher degree of satisfaction. This higher degree, often makes the accused not convicted but acquitted. 
In civil cases the standard of proof is the balance on the probabilities, and the reasoning is that the for a happening to be probable or improbable, it is imperative to decide the factual aspect of the happening or the non- happening of certain events. So, the leniency is more prominent in a civil case than in a criminal case, even if there lie any serious allegations. (OWEN & ANOR -v- THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA as Executor of the Will of ARTHUR OWEN (Deceased) & ORS , 2006)

 

2.2 What is the standard of proof required to admit evidence in a case?

 

2.2 The admissibility of an evidence in a case is based on the admissibility of the document or the testimony or any other tangible evidences, which are introduced before a Court. So, the standard of proof required to admit evidence in a case depends on the nature of it, i.e. if it is a criminal case then the only purpose of the evidence is to prove the guilt of the defendant, beyond any reasonable doubt, and in a civil case, the standard proof required is based on the balance on the probabilities (The Secretary of the Treasury (Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales , 2014)

 

2.3 Who has the burden of proof in a civil case and a criminal case?

 

2.3 In a civil case the original allegation is made by the plaintiff and so the initial burden is on the plaintiff, but as soon as the opposite files their part denying the allegations stated in the claim set forth by the plaintiff, then the burden shift on the defendant. 
In a criminal trial, the burden of proof or the onus rests on the prosecution, since based on the theory of criminal jurisprudence, an accused will always be treated as an innocent party unless the crime or the guilt is proved as against the accused. (R v TRAN & TRAN, 2011)

 

2.4 Why is it important that the prosecuting party call evidence to prove each element of their case?

 

2.4 It is important that the prosecuting party call evidence to prove each element of their case, since it will not only strengthen their case, but also will provide lesser chance on the other party to escape the wrong doing. (HE KAW TEH v. THE QUEEN, 1985)

 

2.5 Explain the presumption of innocence in criminal law

 

2.5 The presumption of innocence in criminal law is the very fact that the accused as of right will be treated as an innocent person until the guilt or the offence is proved against that party beyond any reasonable doubt. Australia is a signatory under UN Conventions, so UN's Universal Declaration of Human Rights (Australian Human Rights Commission Act- Federal Register of Legislation, 1986), also is in parity with this human right of the accused, that he or she would be presumed innocent till the guilt is proved. (John Fairfax Publications Pty Limited v Obeid , 2005)

 

2.6 If a party admits a fact in issue, does it need to be further proved?

 

2.6 If a party admits a fact in issue, the need to be further proved depends on the discretion of the judge, who is in to deciding the case present before the Court based on the admissibility and the relevancy of it. So, when the party wishes to admit the fact in issue, then the judge might ask the party for clarification, about the manner in which the facts he or she is going admit is relevant to the present case. So, judge is to decide the relevancy then the admissibility comes in. (R v NGUYEN & ORS - admissibility evidence, 2006) 

Element 3

3.1 Why must evidence be relevant?

 

3.1 The evidence must be relevant in any case. There can be instances that multiple evidences lie in hand which are not at all relevant. So, in order to make the evidence admissible before the court of law, it has to be relevant, for acquiring speedy justice (Smith v The Queen, 2001).

 

3.2 What is the test for relevance in evidence?

 

3.2 The test that the evidence is relevant lies on the very basis that the evidence shows the tendency in making a fact more probable or less probable and again, an evidence can be called relevant if the facts so stated is in consequence for the determination of the action (Evans v The Queen , 2007). 

 

3.3 Which is better: directly relevant evidence or indirectly relevant evidence?

 

3.3 The only thing which matters is to meet justice at the first possible option. Directly relevant evidence is best possible thing, but in the absence of it, indirectly relevant evidence, can also be considered to decide the matter at the earliest time, without denying fairness (Papakosmas v R, 1999).

 

3.4 Is a Court able to treat a piece of evidence as provisionally relevant?

 

3.4 Yes, under section 57 of the Evidence Act (EVIDENCE ACT- SECT 57 Provisional relevance, 1995), the judge may consider evidence provisionally, if the evidence is relevant only on the combination of other evidence. 

 

References

Mining Equipment “Minquip” Pty Ltd v Alfagomma Australia Pty Ltd, [2005] FCAFC 25 (FEDERAL COURT OF AUSTRALIA 2005).
Australian Human Rights Commission Act- Federal Register of Legislation. (1986). Australian Human Rights Commission Act 1986. Retrieved from https://www.legislation.gov.au/Details/C2017C00143
BOYES -v- COLINS , [2000] WASCA 344 (SUPREME COURT OF WESTERN AUSTRALIA 2000).
DEPARTMENT OF CONSUMER AND EMPLOYMENT PROTECTION -v- BAYSWATER CAR RENTAL PTY LTD , [2007] WASC 76 (SUPREME COURT OF WESTERN AUSTRALIA 2007).
DIRECTOR OF PUBLIC PROSECUTIONS v FERNANDO MANUEL PAULINO, [2017] VSC 343 (SUPREME COURT OF VICTORIA 2017).
Evans v The Queen , [2007] HCA 59 (High Court of Australia 2007).
EVIDENCE ACT- SECT 57 Provisional relevance. (1995). Retrieved from http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ea199580/s57.html
HE KAW TEH v. THE QUEEN, (1985) 157 CLR 523) (HIGH COURT OF AUSTRALIA 1985).
John Fairfax Publications Pty Limited v Obeid , [2005] NSWCA 60 (NSWCA 2005).
Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd , [2002] NSWSC 337 (SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION 2002).
MAJID KARAMI KAMASAEE v COMMONWEALTH OF AUSTRALIA & Ors, [2016] VSC 438 (SUPREME COURT OF VICTORIA 2016).
North Steyne Investments Pty Ltd v Raffaella Lina Rapone, [2010] NSWSC 762 (SUPREME COURT OF NEW SOUTH WALES 2010).
OWEN & ANOR -v- THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA as Executor of the Will of ARTHUR OWEN (Deceased) & ORS , [2006] WASC 276 (SUPREME COURT OF WESTERN AUSTRALIA 2006).
Papakosmas v R, [1999] HCA 37; 196 CLR 297; 73 ALJR 1274; 164 ALR 548 (HCA 1999).
R v NGUYEN & ORS - admissibility evidence, [2006] NSWSC 834 (NSWSC 2006).
R v TRAN & TRAN, [2011] SASCFC 51 (Court of Criminal Appeal 2011).
Smith v The Queen, [2001] HCA 50 (High Court of Australia 2001).
SMITH -v- THE STATE OF WESTERN AUSTRALIA , [2005] WASCA 19 (SUPREME COURT OF WESTERN AUSTRALIA 2005).
The Secretary of the Treasury (Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales , [2014] NSWCA 446 (NSWCA 2014).
TRANDOS & ORS -v- WESTERN AUSTRALIAN PLANNING COMMISSION , [2002] WASC 37 (SUPREME COURT OF WESTERN AUSTRALIA 2002).

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