Category Archives: evidence

Evidence by Phone and AVL: talk to the interests of justice

There is an increasing trend towards witnesses giving their evidence by phone or audio-visual link these days.

 

McCallum J’s recent Supreme Court decision of Tan v Silverdale Sand and Soil Pty Ltd [2014] NSWSC 391 reviews the relevant legislation and provides a useful guide to the kinds of factors that will be taken into account by the decision-maker in such applications.

 

Tan was an appeal on a question of law as of right under s39 of the Local Court Act (NSW) 2007. It was a simple property damage claim arising out of an accident between a truck and a sedan. One of the principal grounds of appeal was that the magistrate erred by giving a direction that an eyewitness to the accident be permitted to give his evidence by phone.

 

At first instance the parties drew the magistrate’s attention to UCPR 31.3, a regulation which is pretty bare on detail, simply providing a court with the discretion to order that evidence may be received by phone, AVL or otherwise.

 

However, the magistrate was not taken to section 5B of the Evidence (Audio and Audio Visual Links) Act 1998, which deals with the question more expansively. There are 2 salient aspects.

 

Firstly, under ss5B(2)(c) a court cannot make an order if it is satisfied that the direction would be unfair to ‘the party’. McCallum J took the view that contrary to what Austin J said in ASIC v Rich, ‘the party’ refers to the applicant party (ie. the party calling the witness). On the face of the section this would seem correct. However it is somewhat counter-intuitive because it raises the obvious question as to why a party would make the application in the first place if it could cause unfairness to them.

 

Secondly, ss5B(3) says that a court must not make the direction unless it is in the interests of the administration of justice to do so. As such, perhaps the easier way of dealing with the ambiguity in ss(2)(c) is simply to roll any questions of fairness affecting all parties, into the ‘interests of justice’ question under ss(3). Her Honour did in fact acknowledge this degree of overlap at [33].

 

On the general fairness issue, the appellant plaintiff argued at first instance that he would be prejudiced by the court not having had the opportunity to observe the demeanour of the witness and not being able to show the witness photos of the accident scene in cross-examination.

 

McCallum J placed these arguments alongside the fact that this was the third time the parties had assembled for the hearing and that the defendant’s lawyers had only become aware a few days prior that the witness could not be in court.

 

A medical certificate was also produced at the first instance hearing, which appeared to assist the defendant. I’ll take this opportunity to point out the obvious – medical certificates should always set out precisely what it is that prevents a person from coming to court. Otherwise, a court is entitled to reject them.

 

In the wash up, her Honour found that whilst not having explicitly considered section 5B, the magistrate did still turn his mind to the right kinds of questions to enable him to adequately consider whether having the evidence given by phone was in the interests of the administration of justice. And she agreed with the magistrate’s tacit consideration that in the overall circumstances, it was.

 

In so finding, her Honour also made mention of the fact that allowing the witness to give evidence by phone facilitated “just, quick and cheap resolution” of the case (s56 of the Civil Procedure Act).

 

A final matter to keep in mind if you are in the Local Court, is that Civil Practice Note 1 at para. 18.1 requires a party to seek a direction that a witness be permitted to give their evidence by phone or AVL at the time the case is listed for hearing. Her Honour said that whilst this is an important procedural requirement, the defendant’s failure to comply with it should not have been fatal, given that “absolute insistence upon literal compliance with it will not always serve the interests of the administration of justice” (at [38]). Once again, we are left with questions over the force and effect of Local Court practice notes…an argument for another day!

 

PS– a bit of shameless self-promotion…the next instalment of the NSWLR’s will include my first reported decision (as junior), Miles v Motor Accident Authority of NSW [2013] NSWSC 927. Fortunately, it was also a win.

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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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The rule in…Jones v Dunkel

This is another instalment in my attempt to compile a list of entries about the cases (mostly old) which are used in litigation as part of the vernacular.

What is it?

The rule in Jones v Dunkel is one which lawyers cite regularly when seeking to highlight a perceived gap in their opponent’s evidence.

It is essentially a common law rule of evidence under which an unexplained failure by a party to put evidence before the court whether it’s a witness or document, may lead to an inference that this evidence would not have assisted that party.

Elements

Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201 said that for a failure to call a witness there are 3 elements required to enliven the rule:

(a)     The missing witness would be expected to be called by one party rather than the other

Normally this is because the witness would be expected to be in the defaulting party’s camp or at least more available to that party.  Based on this aspect, if the uncalled witness is a party themselves or a senior executive likely to have knowledge of the impugned transactions of a corporate party, the adverse inference may prove particularly strong.

(b)     His evidence would elucidate a particular matter

The court must be able to conclude that, based on the other evidence available at the hearing, the witness would probably be able to shed some light on the facts in issue.

(c)     His absence is unexplained

The rule has no application if the absence is explained. This will normally need to be coupled with a reasonable explanation of why the missing witness was not compelled to attend by subpoena. This can involve such things as illness, refusal to waive privilege or that the witness is likely to be hostile to the calling party. However, positive evidence of ‘unavailability’ is required.

Practical Application

If the requirements of the rule are satisfied the non-defaulting party may then ask the court to:

i.         Take the failure into account when deciding whether to accept any other evidence put before the court by the defaulting party about which the witness could have spoken; or

ii.         More readily draw a favorable inference from evidence adduced by the non-defaulting party that could otherwise have been contradicted by the witness not called.

However, there can be no inference that the evidence not put before the court would have been damaging or adverse to the defaulting party’s case.

One technical matter: a failure to call a witness also includes a situation in which they are called by the plaintiff during its case in chief, but there is a failure to re-call them in answer to a fresh matter arising out of the defendant’s evidence.

Why is it important?

Although Jones v Dunkel is all about inferences, you might as well say that the rule is as much about impressions. If the court thinks a party is withholding something from the evidence, it will make some or all of the rest of that party’s evidence no matter how strong, start to seem a lot less credible.

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