Investigation Training Resources
Session 3 - LEGAL PROCESS
Learning Packages
SECTION 4: Rules of Evidence Explained
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Evidence and proof in proceedings
The laws of evidence prescribe standards to which a fact must be proved: in civil proceedings, facts must be proved on the balance of probabilities; and. in criminal proceedings, facts must be proved beyond reasonable doubt.
To successfully pursue your case in court it is necessary to have evidence to back up your claim. You can’t just think you have a case; you must be able to prove it. Evidence can take several forms such as documents, sound and video recordings and witness statements (written statements about what the witness saw or heard). Evidence can also be given through oral statements (testimony) made at court by witnesses. There are a number of rules of evidence which have been established to ensure fairness in the trial process and to ensure that the best evidence is admitted.
In Queensland, the rules of evidence are governed by the Evidence Act 1977 (Qld). You should also have regard to any procedural rules under the Uniform Civil Procedure Act 1999 (Qld).
The facts in issue
Evidence is used to prove the “facts in issue” in a court proceeding. The facts in issue are the things you will need to prove for your case to succeed.
This will depend upon the cause of action or legal basis which entitles you to commence legal proceedings. For example:
For example, in a case of negligence, a person must show that the other party owed them a duty of care, that this duty was breached and that the person suffered damage as a result.
Admissibility and relevance
Evidence will only be admissible (allowed into court) if it is relevant. Evidence will be relevant where its existence tends to indicate that one of the facts in issue is more or less likely. Basically, the court will ask whether the evidence you are trying to introduce would help to decide the issue(s) before it. For example, in proving a breach of duty in a negligence claim, evidence about current financial hardship is unlikely to be relevant.
Evidence can either be:
directly relevant, where it includes an observation, perception or description of a fact in issue; or
circumstantially relevant, where the Judge or jury can use it to draw an inference which goes towards proving a fact in issue. Things like a person’s past habits or the existence of a motive can often be used as circumstantial evidence.
Circumstantial evidence can sometimes be very persuasive. For example, in a case of personal injury arising out of a machinery malfunction, the fact that an employer had been seen inspecting the machine the previous day might be used by a court to infer that they were aware that it was not working properly.
Exclusion of evidence (“exclusionary rules”)
While evidence that is relevant will be admissible, there are several exclusionary rules that may prevent evidence (however relevant) from being admitted by a court. If a judge decides in their discretion that the evidence is outside the rules, it will be held to be inadmissible and cannot be relied upon to prove the fact in issue. Whether one of these exclusionary rules applies in your case will be decided by the judge. If the trial involves a jury, they will be sent from the court to allow the matter to be determined in their absence
What are the different types of evidence?
There are several types of evidence that can be used to support a claim or argument in court. Here are some common types:
1. Admissible Evidence
2. Inadmissible Evidence
3. Hearsay Evidence
4. Direct Evidence
5. Circumstantial Evidence
6. Statistical Evidence
7. Real Evidence or Physical Evidence
8. Prima Facie Evidence
9. Impression Evidence
10. Testimonial Evidence
11. Character Evidence
12. Habit Evidence
13. Forensic Evidence
14. Trace Evidence
15. Expert Witness Evidence
16. Exculpatory Evidence
17. Digital Evidence
18. Corroborating Evidence
19. Insufficient Evidence
20. Oral Evidence
21. Documentary Evidence or Exhibits
Full Disclosure
In the Queensland criminal justice system, the disclosure of evidence is the task of the prosecution.
The disclosure of relevant evidence is reliant upon sound judgements by those in possession of the material, and the ability of the defence to predict what additional material the prosecution may possess, and to request it.
The law in relation to disclosure by the prosecution is governed by provisions of the Criminal Code. Section 590AB(2)(b) relevantly provides, the prosecution must give to an accused person full and early disclosure of:
All evidence the prosecution proposes to rely upon in the proceedings, and
All things in the possession of the prosecution, other than things the disclosure of which would be unlawful or contrary to public interest, that would tend to help the case for the accused person.
The notion of evidence being available but not in the prosecution’s possession is a dangerous impediment to the administration of justice. Crucial evidence can be lost or destroyed if investigators do not retain the evidence at early stage. The failure to retain evidence can sometimes be so unfair that it leads to a fundamental defect, which goes to the route of the trial.[1]
Rule 29.5 of the Australia Solicitor Conduct Rules creates a higher burden and requires prosecutors to disclose all material of which the prosecutor becomes aware, which could constitute evidence relevant to the guilt or innocence of the accused
[1] Jago v District Court (NSW) (1989) 168 CLR 23 at 34
