CQLA Conference October 2013: CQLA Conference October 2013: Affidavits and the Rules of Evidence Presenters: Gerald Byrne:Barrister-at-Law Jordan Ahlstrand: Barrister-at-Law

Topics 1.Historical origins of affidavit evidence. 2.Affidavits and the rules of evidence generally. 3.Obtaining and admitting s, Facebook messages and text messages into evidence. 1.Case study.

Historical Origins of Affidavit Evidence  In the early to mid 1800’s efforts were made to modernise evidence in the Equity Courts.  The Common Law Procedure Act 1854:  Trial by Judge alone; and  Witnesses could be ordered to make an affidavit; and  Many of these reforms were mirrored in other legislation (for example the Criminal Procedure Act 1865).  Described as an artificial mode of trial.

Historical Origins of Affidavit Evidence  Queensland separates from NSW in 1859 and inherits the common law rules of evidence, and some Imperial Legislation.  Evidence and Discovery Act 1867 (Qld) serves Queensland Courts with little amendment for more than 100 years.  Common contemporary manifestations:  Civil proceedings commenced by Application (Chapter 2, Part 4 of the UCPR);  Family law proceedings; and  Domestic violence proceedings.

Affidavits and the Rules of Evidence Generally  Civil proceedings:  Evidence Act 1977 (Qld) – various provisions; and  Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) – Chapter 11, Part 7.  Family law proceedings:  Evidence Act 1995 (Cth) – various provisions;  Family Law Act 1975 (Cth) – Part XI; and  Federal Circuit Court Rules 2001 (Cth) – Part 15, Division 15.4.

Affidavits and the Rules of Evidence Generally  The relevance rule:  Common law; and  Chapter 3, Part 3.1 of the Evidence Act 1995 (Cth).  The hearsay rule:  Common law; and  Chapter 3, Part 3.2 of the Evidence Act 1995 (Cth).

Affidavits and the Rules of Evidence Generally  The opinion rule:  Common law; and  Chapter 3, Part 3.3 of the Evidence Act 1995 (Cth).  The discretion to exclude evidence:  Common law;  Chapter 3, Part 3.11 of the Evidence Act 1995 (Cth); and  Rules 5, 389A and 444 of the Uniform Civil Procedure Rules 1999 (Qld).

Obtaining and Admitting s, Facebook Messages and Text Messages into Evidence  Evidence Act 1977 (Qld):  Schedule 3 - meaning of “document”;  Section 4 - meaning of “copy” of “document”;  Section 5 - meaning of document purporting to be of certain character;  Section 92 – admissibility of documentary evidence; and  Proof of certain matters by affidavit – Part 7, section 104 definitions, and section 125.

Obtaining and Admitting s, Facebook Messages and Text Messages into Evidence  Evidence Act 1995 (Cth):  Section 3, Dictionary Schedule - meaning of “document”;  Chapter 2, Part proof of contents of document; and  Proof of certain matters by affidavit - Chapter 4, Part 4.6, Division 2.

Obtaining and Admitting s, Facebook Messages and Text Messages into Evidence  Civil proceedings:  Exhibits – section 435 UCPR.  Family law proceedings:  R Federal Circuit Court Rules 2001 (Cth).

Case Study  Domestic Violence and Family Protection Act 2012 (Qld):  Sections 142, 145 & 189;  Background information;  Historical acts said to constitute domestic violence;  Why necessary or desirable;  Exhibit the relevant material; and  Put yourself in the shoes of the judicial officer considering the application.

QUESTIONS?