Evidence and Proof (Laws 13010) - Week 4

Lecturer: Anthony Marinak

Introduction

• Week 3 Recap: Methods of proof using different types of evidence (oral, documentary, real).
• Week 4 Focus: Deep dive into oral evidence: its nature and legal aspects.
• Upcoming Week: Eliciting testimony from witnesses, examination, cross-examination.

Oral Evidence Fundamentals

• Definition: Evidence given viva voce, perceived through five senses by the witness.
• Characteristics of Oral Evidence:
  1. Viva Voce: Communication through questioning by lawyers, not monologues or dialogues.
  2. Under Oath/Affirmation: Witnesses must swear to tell the truth, backed by penalties.
  3. Observational: Relates to witnesses' direct sensory perception (seeing, hearing, touching, etc.).
  4. Cross-examination: Key advantage; witnesses can be questioned by all parties.

Oath and Affirmation

• Oath: Traditional, with religious content (e.g., “So help me God” while holding a Bible).
• Affirmation: Non-religious alternative; legal equivalent.
• Historical Context: Non-Christians previously not competent to give evidence.

Penalties for False Testimony

• Perjury: Severe penalties, up to life imprisonment in severe cases.
• Contempt of Court: Refusal to answer questions can lead to jail time.

Public Access and Closed Courts

• Open Courts: General rule, proceedings are publicly accessible.
• Closed Courts by Statute/Inherent Power: Cases involving children, specific sensitive matters (e.g., blackmail, sexual offence cases).

Limitations of Oral Evidence

• Perception: Human perception is limited and subjective (e.g., speed estimation, sound levels, crowd filtering).
• Comprehension: Different understanding/interpretation of events by different witnesses.
• Memory: Memories degrade over time; brain often fills in gaps, which can alter truths.
• Honesty: Witnesses may lie, omit details, or give misleadingly revised versions of events.
• Eloquence: Articulate, confident witnesses often perceived more positively than timid ones.

Special Witness Considerations

• Children: Special protocols for dignity, limited trauma, reduced intimidation, quick proceedings.
  • Methods: Recorded evidence, audio-visual links, giving evidence behind a screen, limited cross-examination (no “fishing expeditions”).
• Rape Victims: Protection against public identity disclosure, rape shield laws to protect against questioning on sexual history.

Privilege in Evidence Law

• Self-Incrimination: Witnesses can refuse to answer potentially incriminating questions.
• Client Legal Privilege: Protects communication between client-lawyer for the dominant legal purpose.
• Public Interest Privilege: Protects parliamentary speech, court evidence, information injurious to public if disclosed.
• Privileges Not in QLD Law:
  • Religious Communications: Sacred communications protected under commonwealth law.
  • Journalistic Sources: Protection for journalists’ sources under the commonwealth law.
  • Cultural Privilege: Consideration in specific cultural contexts (e.g., Hindmarsh Island case).

Conclusion and Preparation for Next Week

• Next Week: Focus on techniques for cross-examining witnesses.
• Recommended Viewing: “Breaker Morant” for examination of cross-examination techniques in court-martial settings.