Adducing Documents Miiko Kumar 28 November 2016

Documentary evidence “Document” (Dictionary) “Document in question” (s 47) Tender the document under s 48 (1) or … Unavailable documents – 48(4) Clause 5 of Part 2 of the Dictionary Voluminous documents – s 50 Original document rule – s 51

Authentication NAB v Rusu (1999) 47 NSWLR 309 ACCC v Air NZ Ltd (No 1) [2012] FCA 1355

Adducing Real Evidence Physical Things Demonstration, experiment or inspection

Section 52 - Adducing of other evidence not affected This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence.

How are physical objects adduced as evidence? Murder weapon Drugs the subject of the drug trial Photographs of the crime scene Map of the crime scene Scales in a drug trial Contract in a commercial dispute Chair that collapsed in an accident (in negligence case)

Section 53 Views A judge may, on application, order that a demonstration, experiment or inspection be held. (2) A judge is not to make an order unless he or she is satisfied that: (a) the parties will be given a reasonable opportunity to be present, and (b) the judge and, if there is a jury, the jury will be present.

Section 53 Views (3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following: whether the parties will be present, (b) whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence, (c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time, (d) in the case of a demonstration-the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated, (e) in the case of an inspection-the extent to which the place or thing to be inspected has materially altered.

Section 54 - Views to be evidence The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.

Application of ss 53 and 54 Trial of Ivan Milat - Could a view of the forest occur without Milat attending?

Jamal v R [2012] NSWCCA 198 View of police station. Accused wanted to attend the view. Judge decided that the view should occur in his absence and that there was “no necessity for the accused to be present because he will be represented by counsel”. Accused has a right to be present at a view from the terms of s 53(2)(a). Reference to “parties” is to the parties themselves. Milat chose to not attend the view. Here, the conduct of view was in breach of the statutory requirement to provide the accused with a reasonable opportunity to be present = fundamental flaw in trial process.

What about an experiment, demonstration or inspection that is conducted in a courtroom? Evidence of the accused putting on the balaclava and sunglasses Evidence of saying “Give me the serious cash” Evidence of the accused walking in the overalls

R v Bilal Skaf, R v Mohammed Skaf What was the successful ground of appeal in this case? Can courts receive evidence from former jurors as to their deliberations? [210] [214] Did the CCA find that the conduct of the 2 jurors was part of the deliberations? What was the “characterisation of the proven incident”? – [241]

Jurors engaged in a view and conducted experiments – but not evidence in the trial. Parties and judge could not deal with this material. Possibility that lighting conditions different Procedural unfairness Misconduct = miscarriage of justice

Section 53 (4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations. (Note s 53 does not apply to the inspection of an exhibit – 53(5))

R v Kozul Common law case Now covered by s 53(4) Mere examination and testing of evidence, not supplying new evidence

Example A footballer is charged with murdering his wife at the former family home. The prosecution allege that the footballer wore a leather glove to commit the murder. Can the glove be adduced as evidence? Can the Crown conduct experiments on the glove? At the trial, will a view of the home be allowed? Can the defence adduce evidence that the glove does not fit the accused’s hand?