Evidence: The Courts and the Commission - a comparison

1. Evidence: The Courts and the Commission - a comparison Andrew Watson Maurice Blackburn Cashman

2. Introduction We’re going to do three things: • General Rules of Preparation wherever you are • Practical exercise • The main differences between evidence in Courts and the Commission

3. Evidence wins cases • Cases usually won on facts not law • But what that strictly means is cases are won on findings of fact • Courts/Tribunals/practitioners can never be sure that the facts as found actually occurred

4. The process of Fact Finding • Event Occurs and is Witnessed • Witness speaks to Advocate • Advocate selects what’s important/admissible • Witness gives evidence in chief • Court selects from what advocate has selected and what witness has given as evidence in chief as to what’s admissible • Witness is cross-examined • Witness is re-examined • Court finds fact

5. Evidence = Risk and Uncertainty Every stage of the previous process inheres with risk and uncertainty • The witness will have a faulty recollection and may deliberately not tell the truth (in their account to the advocate, the Court or both) • The advocate may exclude evidence that’s important and relevant • The cross examination may lead to the witness being disbelieved • The Court may get it wrong

6. Minimising Risk • Rely on uncontroverted facts • Rely on your opponents facts • Preparation

7. Preparing your evidence • Take a detailed proof • Remember your case theory • Structure the evidence • Prepare a witness statement (if possible) • Use documents - your opponents wherever possible, yours (subject to admissibility) if you don’t have any of theirs • Deal with your opponents case • Explain the process to the witness

8. Preparing Witness Statements • Structure • The “your words or theirs” debate • Annex exhibit documents

9. Leading Evidence Viva Voce • Avoid if possible • Plan out carefully • Don’t lead • What, why, when, where and who • Avoid the lazy “and then what happened” • If the witness forgets have another go (differently phrased) if still unsuccessful maybe come back later

10. Preparing For XXN • Is absolutely critical to successful cross-examination • Is a whole topic in itself; and • Is not going to be covered in this lecture

11. Practical Exercise

12. The rules of evidence • Are the default position for Courts • Are not the default position for the Commission • In the Federal Courts and NSW are primarily to be found in the Evidence Act 1995 in each jurisdiction

13. Our Focus • Evidence Act 1995 (Cth.) • The main differences between Courts and the Commission • This is not a comprehensive review of the law of evidence • In particular we only consider civil proceedings

14. The main differences • The Court won’t posses any specialist knowledge • Relevance will be a stricter hurdle • The Hearsay exclusion • The Opinion Rule

15. The Courts are not Specialists • Neither the Federal Court nor the Federal Magistrates Court are necessarily presided over by industrial specialists • You should not assume they know anything about industrial instruments or realities or that they have any understanding of your industry or sector • Explain everything in what will seem like kindergarten level detail

16. ADMISSIBILITY OF EVIDENCE Is the evidence relevant? (See Part 3.1.) THE EVIDENCE IS NOT ADMISSIBLE No Yes Does hearsay rule apply? (See Part 3.2. See also Part 3.4and Part 3.8) Yes No Does the opinion rule apply? (See Part 3.3. See also Part 3.4 and Part 3.8) Yes No Does the evidence contravene the rule about evidence of judgments and convictions? (See Part 3.5.) Yes No Does the tendency rule or the coincidence rule apply? (See Part 3.6. See also Part 3.8) Yes No Does the credibility rule apply? (See Part 3.7. See also Part 3.8) Yes No Does the evidence contravene the rules about identification evidence? (See Part3.9.) Yes No Does a privilege apply? (See Part 3.10.) Yes No Should a discretion to exclude the evidence be exercised? (See Part 3.11.) Yes No THE EVIDENCE IS ADMISSIBLE Yes

17. Relevance - the test Section 55(1) provides: “The evidence that is relevant in a proceeding is evidence that if it were accepted , could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”

18. Relevance is stricter • Facts in issue are defined by pleadings and are by nature less ambulatory than matters in a dispute/within ambit • Agreements are interpreted by reference to the objectively ascertained intention of the parties at the time of the agreement - subsequent conduct is inadmissible, fairness is not an issue

19. Hearsay Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert s.51(1)

20. The key terms • “Representation” includes words spoken or written and implications drawn from words or inferred from conduct • “To prove the existence of the asserted fact” means evidence of previous representation may be adduced for other purposes (must still be relevant and otherwise admissible). Note s.60 • Did the maker of the previous representation intend to assert the existence of the fact?

21. The important Hearsay exceptions • Admissions (s.81) • Business records (s.69) • Interlocutory Proceedings (s.75) • Evidence admitted for a non-hearsay purpose (s.60) • Contemporaneous statement re health feelings, sensations intention, knowledge or state of mind (s.72)

22. The less important Hearsay exceptions • Maker not available (s.63) • Maker available and undue expense etc (s.64(2)) • The fresh in the memory exception s.64(3) • Tags, labels etc, (s.70) • Electronic communications origin,destination and time details (s.72) • Reputation of public or general rights (s.74)

23. Opinion Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: s.76(1)

24. Exceptions to the Opinion rule • Expert evidence (s.79) • Admissions (s.81) • Lay opinion necessary to understand a person’s evidence (s.78) • Evidence admissible otherwise than as opinion (s.77)

25. Credibility Evidence relevant to credibility only is inadmissible (s.102)unless: • adduced in XXN (s.103); • rebutting certain denials (s.106); • re-establishing credibility put in issue (s.108) • where hearsay has been admitted and maker not called(s.108A)

26. Other matters • Tendency and coincidence evidence (part 3.6) • Privilege • The discretion to exclude evidence (Part 3.11) • The rules regarding reviving memory (ss.32 and 34)

27. Conclusion Proper preparation is the key