Documentary Evidence Flashcards
What are the three steps in using a document in evidence?
Tendering, authenticating and admissibility.
What does section 48 of the Evidence Act 2008 (Vic) provide?
The means of tendering documents in court, including: a copy (1)(b)(I).
What section allows tendering of a summary of voluminous or complex documents?
s 50 Evidence Act 2008 Vic. In summarising the documents, the opinion rule is expressly stated not to apply: s 50(3).
Which section abolishes the common law rule that the original document is required to be tendered?
s 51 Evidence Act 2008 (Vic) However, it has been academically noted that the original document rule might have renewed relevance in the context of electronic documents - should we be allowing lawyers to copy and paste summaries of cha room conversations into word documents?
What is authentication?
An evidentiary basis that the jury could accept that the document is what it says it is.
Which section allows a court to inspect a document and draw any reasonable inference about it, including as to its authenticity or identity?
Section 58 Evidence Act 2008
Which case states that despite that authentication is still required under the UEA?
NAB v Rusu [1999] NSWSC per Bryson J Suggested that inference under s 58 insufficient.
A party may serve a notice on the other party calling on them to admit the authenticity of documents.
O 35.05 Supreme Court Rules Vic
To pass the admissibility gateway, why are contractual documents and documents recording misleading and deceptive statements not subject to the hearsay rule under s 59?
Because the purpose of tendering those documents is not to prove the statements are true, only that they were made: Subramaniam v Public Prosecutor [1956] PC
The combination of which sections combine to make the sender information in an email admissible evidence of when the email was sent, and to whom?
Three stage process: 1. Evidence of time, sender and sendee is not hearsay and is therefore admissible evidence: s 71 2. Not only is it admissible evidence, but s 161 (Electronic Communications) makes it prima facie proof of time of delivery and sender and recipient. This interplays nicely with s 13 ETA governing the time of service of emails etc
Which section assists with authentication by presuming a copy of a document made with a machine is the same as the original?
Section 146 Evidence Act (Vic) Example It would not be necessary to call evidence to prove that a photocopier normally produced complete copies of documents and that it was working properly when it was used to photocopy a particular document.
Which section provides that documents older than 20 years produced from proper custody are prima facie authentic?
Section 152 Evidence Act 2008 (Vic)
Aside from when the author is available or unavailable, what are the four common means of circumventing the hearsay rule with documentary evidence?
- Business records: s69
- Admissions: s81
- Contemperaneous representations health, feelings, sensations, intention, knowledge or state of mind: s 66A (i.e. on smartphone)
- Copies of contracts etc: Subramaniam
Which section allows for “negative hearsay”?
s 69(4) Evidence Act 2008 (Vic)
Where a system of business records has been followed of making and keeping a record of all events of a particular kind, s 69(4) permits proof that such an act did not occur if no record of it has been kept in that system.
