Photographic evidence: a couple of different angles

Using photographs in court can be very persuasive. However, it is useful to know the formalities of getting them into evidence and their probative limits once admitted.

UCPR 31.10

Normally photographs will form an annexure to a witness’ evidence accompanied by a statement about when and where the person took them. In this case, their admission into evidence will rarely be contentious. But for the reasons set out in the section below, it is also useful for the witness to provide as much other information as they can about the photos and the scene they depict. In this way, they will have greater probative force and can be relied upon for a wider variety of purposes.

Sometimes photographs or video will surface very late in the piece, often as late as the day of the trial. Normally, unless served at least 7 days before the hearing NSW UCPR rule 31.10 prevents their tender into evidence. There are a couple of exceptions set out in the rule being:

(i)             the photo was created for the purpose of testing the credit of a witness and the testing party had a legitimate forensic purpose (eg. the element of surprise in cross-examination) in not serving the material previously; or

(ii)           with leave (I imagine a very good excuse would be required).

Needless to say this is a useful section to be aware of when the opponent takes you by surprise.

What can photos be used to prove?

Photos are often used in cases where negligence is an issue. The plaintiff will often return to the scene of the accident shortly afterwards and collect a series of images, which their legal representatives may then seek to rely on in having the court draw key findings of fact.

The NSW Court of Appeal has been very careful to point out that whilst photos can have some probative value, courts should be careful to ensure that they are not the sole source from which a primary fact (eg. a question of distance) should be inferred: Warren v Gittoes [2009] NSWCA 24; Blacktown City v Hocking [2008] NSWCA 144).

As Tobias JA said in both of the above cases, quoting from the Privy Council in US Shipping Board v The Ship St Albans [1931] AC 632, the use of photographic evidence must be the subject of “careful delineation”.

Tobias J also joined Beazley JA in a judgment in Angel v Hawkesbury City Council [2008] NSWCA 130 where it was said by the latter that the perspective of the photos relied upon by the appellant in that case were skewed and deceptive.

Again, these are points which should be raised when faced with damning photographic evidence from one’s opponent.


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Filed under Civil, evidence

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