Documentary evidence

Question 1

What is documentary evidence?

Answer 1

1. Any written thing capable of being evidence (R v Daye)
2. Any book, map, plan, drawing or photograph (section 33 CPEA)
3. Any device by which information is stored or recorded (section 221 of CPA)

Question 2

What are the requirements for the admissibility of documentary evidence?

Answer 2

1. Relevance
2. Originality
3. Authenticity

Question 3

What is the essential evidentiary difference between admitting a document at trial as documentary evidence or as real evidence?

Answer 3

The purpose for which the document is admitted.

Question 4

What are the two general categories of documents?

Answer 4

Private and public

Question 5

What is a public document?

Answer 5

A document drafted by a public official in the execution of a public duty, intended for public use and to which a member of the public has a common law and constitutional right of access.

Question 6

What is a private document?

Answer 6

Any document which is not a public document.

Question 7

When must a private document comply with the requirements of the hearsay rule as defined in section 3 of the LEEA?

Answer 7

When adduced at trial.

Question 8

When may a public document be adduced at trial?

Answer 8

As an exception to the hearsay rule.

Question 9

What other requirements are there besides originality, relevance and authenticity?

Answer 9

It must first be identified, discovered to the opposing party and produced for inspection.

Question 10

What may be used at trial to oblige a third party to produce any document at trial where the document is in possession or control of a 3rd party?

Answer 10

A subpoena duces tecum

Question 11

What is a discovery-like rule that an accused can use?

Answer 11

A section 87(1) of the CPA request for further particulars in writing from the prosecution and access to any part of the police docket subject to police docket privilege.

Question 12

What is the best evidence rule?

Answer 12

A rule that holds that no evidence may be admitted at trial to prove the contents of a document except the original document itself.

Question 13

What is primary evidence?

Answer 13

Evidence that tends to suggest that there is no better evidence available.

Question 14

What is secondary evidence?

Answer 14

Evidence that tends to suggest that there is better evidence available.

Question 15

What did the court hold in R v Amod?

Answer 15

The best evidence rule only applies when the contents of a document are in dispute, in which case the original document must be produced.

Question 16

What are the circumstances which do not require the production of an original document at trial?

Answer 16

1. Where the existence of a relationship or status flowing from a document is in dispute
2. Where oral testimony instead of documentary evidence will suffice.

Question 17

When is secondary evidence admissible?

Answer 17

If there is an acceptable explanation for the non-availability of the original.

Question 18

Where is secondary evidence admissible?

Answer 18

1. The existence of the document is in dispute
2. Original document is destroyed and a failure of a diligent search to locate it
3. Production of the original may result in a criminal charge
4. Production of the original is impossible
5. Original is in the possession of a third party who refuses to produce it, despite being served a subpoena duces tecum, on the basis of privilege or being outside of court’s jurisdiction

Question 19

How is the authenticity of a document proved?

Answer 19

By leading evidence.

Question 20

When can a document not be authenticated for the purposes of adducing it in civil proceedings?

Answer 20

When the following procedural rules have been adhered to:
1. Produced in pre-trial discovery
2. Produced in court under a subpoena duces tecum
3. Is part of an interlocutory affidavit
4. Has been handed up from the bar

Question 21

When else may the requirement of authenticity be waived?

Answer 21

1. Where the court takes judicial notice of the document
2. The other side acknowledges its authenticity
3. Section 34(1) and (2) of the CPEA applies.

Question 22

What are the procedural steps in admitting a document in civil proceedings?

Answer 22

1. Identify all relevant documents intended to be used as evidence
2. Determine whether it is an original or copy
3. Discover documents not covered by privilege
4. Allow for the inspection and examination of these documents by the opposing party
5. Determine whether there are any common law or statutory exceptions to the admissibility of the original and/or any exceptions to the requirement of authenticity
6. Serve a notice on all other parties requiring them to admit the authenticity of the documents intended to be used at trial (HCR 35(9), MCR 23(10))
7. Subpoena witnesses capable of testifying or proving the originality/authenticity of a relevant document
8. Provide bona fide reasons why the original document has been lost and why only a secondary copy is being admitted as evidence
9. Provide for expert witness testimony where necessary
10. Determine whether a document is intended to be admitted for the probative value of its content or merely to prove its existence as an object