Oral, real, documentary and data messages

Question 1

Oral evidence rule and rationale

Answer 1

Generally ito CPA + CPEA, evidence must be given orally.

Rationale = linked to adverserial system where two parties are in dispute - the primary truth seeking tool is examination and cross examination which is only possible where evidence is tendered orally.

Question 2

Leading questions definition

Answer 2

A question suggesting an answer.

Question 3

May one ask leading questions

Answer 3

Prohibited

Question 4

Rationale for prohibiting leading questions

Answer 4

Inhibits truth seeking function of the court, witnesses may affirm out of a desire to please / fear / indifference.

Question 5

Exception re leading questions

Answer 5

Allowed in cross-examination because there is an assumption that they won’t be agreeable.

Judges may ask leading questions.

Question 6

Exceptions to oral evidence rule? Methods?

Answer 6

Where impossible for witness to give evidence in court w/out causing undue delay.
Methods: Commissioners; interrogatory; evidence by affidavit.

Question 7

Real evidence: def + admission requirements

Answer 7

Material objects produced for inspection.

Reqs:
1. Relevance
2. Challenged wrt chain of custody

Question 8

Documentary evidence: Requirements for admission

Answer 8

1. Relevant
2. Otherwise admissible (constitutionally obtained, not hearsay)
3. Original must be proved - prove authenticity
4. Docs pre 1 April 2009 - check if its a doc that needs to be stamped.

Question 9

Documentary evidence: Requirements for proving authenticity

Answer 9

Was it made by the person who claims to have made it?

• call person who compiled doc as witness
• if doc was signed by 2 witnesses - can call them
• if handwritten: could call handwriting expert

Easiest way: get other side to agree to admission and authenticity.

Sometimes need not prove authenticity - usually gov docs.

Question 10

Data messages

Answer 10

Digital data is created and stored in the internet and is considered to be easier to manipulate compared to analogue electronic data such as photograph film / vinyls.

Question 11

ECTA re admissibility

Answer 11

In any legal proceedings: apply rules of evidence normally - the admissibility of the data message should not be affected due to it being a data message; or
if its the best evidence the person adducing it would reasonably be expected to obtain, on the grounds that its not in its original form.

Question 12

ECTA definition of data

Answer 12

electronic representations of info in any form

Question 13

ECTA definition of data message

Answer 13

data generated, sent, received or stored by electronic means.

Question 14

Factors for evidential weight of data message

Answer 14

1. reliability in manner in which it was generated / stored / communicated
2. reliability of manner in which the integrity thereof was maintained
3. manner in which its originator was identified
4. any other factor.

Question 15

Are data messages real or documentary

Answer 15

WCHC: Brown = Court said its preferable for data messages to be considered documentary (as opposed to real) as data messages could be manipulated.

This would align w/ legislative intention to treat E-evidence as the functional equivalent of a document.

Position = unclear (have been conflicting HC cases)