#7504 - Documentary Evidence And Real Evidence - Evidence and Criminal Procedure

[Party] may adduce evidence of the contents of [document] by tendering the document by [Choose one of the following methods]:

1. adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question;

2. tendering a document that:

   1. is or purports to be a copy of the document in question; and

   2. has been produced, or purports to have been produced, by a device that reproduces the contents of documents;

3. if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)--tendering a document that is or purports to be a transcript of the words

4. if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it--tendering a document that was or purports to have been produced by use of the device;

5. tendering a document that:

   1. forms part of the records of or kept by a business (whether or not the business is still in existence); and

   2. is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary;

6. if the document in question is a public document--tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed:

   1. by the Government Printer or by the government or official printer of a State or Territory; or

   2. by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country; or

   3. by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament.

Views

Under section 53 a judge may order that a demonstration, experiment or inspection be held if [he/she] is satisfied that:

1. the parties will be given a reasonable opportunity to be present; and

2. the judge and, if there is a jury, the jury will be present.

The judge may take into account the following:

1. whether the parties will be present;

2. whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence;

3. 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;

4. in the case of a demonstration--the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated;

5. in the case of an inspection--the extent to which the place or thing to be inspected has materially altered.

R v Milat (1996) (unreported)

Facts: The prosecution wished to do a location visit to the Belanglo State Forest. This is where they found the bodies of the victims which the accused was alleged to have killed. One of the things they wished to show was that at the time the forest was very secluded and did not have much road access or paths, and any person who went there for the first time would not know their way around it, thus someone familiar with the terrain and with a 4WD would be able to get around. The visit was also to show how isolated it was where the bodies were found and the relativity of the grains around this area. The first issue was whether Milat was able to attend. The prison services said that they could not provide security for him given this is an area which he is alleged to be familiar. Had he attended he would be in handcuffs and escorted by guards. In the mind of the jury this would suggest guilt. At trial he is not handcuffed. The court had to decide whether this prejudice would outweigh the probative value of the visit.

Held: This case affirmed that where location evidence is conducted, defendant must be given the opportunity to attend. The court held that the probative value outweighed the prejudice and held that directions and warnings could be given to the jury regarding this. Milat however decided not to go. They did not want to create the image for the jury of him at the scene of the crime. There was no media allowed and a helicopter ban. Despite the public interest the court held that this was not to be interfered with. The jury was not able to attend the memorial which had been erected in the forest after the deaths but prior to the conviction of Milat.

R v Bilal Skaf, R v Mohammed Skaf [2004] NSWCCA 37

Facts: The two appellants were convicted of aggravated sexual assault without consent. Identification and the adequacy of lighting in the park enabling the complainant to see her assailants were relevant issues in the trial. They succeeded in their appeal against conviction on the basis that the trial miscarried by reason of juror misconduct. Although the jury had been sent out to consider their verdict, two jurors attended the park at night where they checked out the lighting and conducted experiments with each other at different places in the park to see whether they could see each other at all times.

Held: The Court of Criminal Appeal held that the experiments could not be considered part of the jury’s deliberations and evidence as to what occurred at the park was inadmissible. In that event, the evidence was obtained in circumstances amounting to procedural unfairness (denial of natural justice) as the accused were unable to test the material in any way. A new trial was ordered as the Court could not be satisfied that the jurors’ conduct has not affected the verdict and the jury would have returned the same verdict if the jurors’ had not visited the park.

Evans v R [2007] HCA 59

This case deals with demonstrations, experiments and inspections.

Facts: On the afternoon of Thursday 28 February 2002 a man entered the...