Investigation Training Resources
Session 3 - LEGAL PROCESS
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SECTION 6: Some Important Rules About Evidence
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Some important rules about evidence
Not all evidence that is relevant can be shown to the court. The rules about evidence are complicated. Evidence that cannot be used in court is called 'inadmissible evidence'.
The common types of inadmissible evidence include:
Hearsay evidence
Hearsay is something you heard from someone else that you did not see or hear for yourself. Usually, you can’t rely on hearsay in your evidence to the court. So, for example, you can’t talk about a conversation between your sister and ex-partner, which happened when you weren’t there.
There are exceptions to this rule. Evidence about a conversation might be allowed to work out the time and place of an event or why a person acted in such a way. So, you can say that a conversation took place, but not what was said. Also, hearsay can be allowed in cross-examination.
If you try to use hearsay evidence, the other party may challenge its use. To avoid this, you can call the person who made the statement as a witness.
Opinion evidence
Usually witnesses can only give evidence about things they know as fact. So, a witness can give evidence of what they saw but not what they think about it. One exception to this is the evidence of an expert, who has qualifications or experience that they use to give an opinion. An example might include a psychologist or forensics expert.
Character evidence
Usually evidence used to harm a witness is inadmissible. If a party uses evidence to show their good character, you may be allowed to use evidence to show otherwise.
Past behaviour
How a witness behaved in the past, if not relevant to the current case, is not usually admissible. However, you may be allowed to use evidence that shows a pattern of behaviour in certain circumstances. For example, you may be able to show evidence of previous incidents of family violence if violence is an issue in your case.
Legally privileged information
Confidential information that you have given to or got from your lawyer (including negotiations to settle the case) are inadmissible. Things said at mediation or in family dispute resolution are also inadmissible.
Confidential information may be used:
when the parties agree to the evidence being used
where most of the evidence has already been used
when the information was not meant to be confidential
where the evidence contradicts other evidence given about attempts to settle the dispute
where the case is to enforce an agreement made by the parties to settle the dispute.
Expert witnesses
Reports from professionals (expert witnesses) should only be used when their evidence is necessary to sort out an issue in dispute. If you use an expert witness, it needs to be included in an affidavit.
Expert witnesses must be:
given a letter outlining the issues you would like them to report upon
used by both parties to make one report, if practical
informed of their obligations.
If the parties use 2 expert witnesses, both reports must be filed with the court and the experts may have to meet each other.
Evidence Act 1977 - Queensland Legislation - Queensland Government
What is Circumstantial Evidence?
Very briefly, circumstantial evidence is evidence of one fact that proves another fact indirectly. It is not direct evidence that by itself proves the offence or an element of the offence (eg. a video of the offence, oral testimony from a witness who saw the offence). It is common to describe circumstantial evidence as a fact that tends to prove another fact.
To be successful in a largely circumstantial or entirely circumstantial case you need to:
1. Prove the elements of the offence (facts to be proved) through circumstantial evidence (facts that tend to prove the elements of the offence); and
2. Disprove any reasonable explanation consistent with innocence.
It is uncommon for cases to be won purely on direct evidence alone. It is often a combination of direct and circumstantial evidence that will get you across the line.
Proving the facts through circumstantial evidence
Say, for example, you want to prove trees were cleared without a development permit. In order to prove the facts you would likely rely on a combination of direct and circumstantial evidence because tree clearings can be notoriously hard to catch while they are occurring. If no one witnessed the clearing occurring and the alleged offender doesn’t admit to the clearing, how do you prove they did it?
If you’re on the property conducting an inspection, your circumstantial evidence may be:
1. The property is fenced and has a locked gate – tending to prove only people with keys or directly authorised by the landowner are able to enter the property;
2. Machinery (eg. bulldozer, chainsaws, drag chains) is parked on the property – tending to prove the mechanical means to clear trees is there;
3. The machinery has advertising on the side of it that is not associated with the landowner – tending to prove someone brought the machinery onto the property for a specific purpose;
4. The trees are all pushed over in one direction – tending to prove they were cleared by human intervention and not natural means;
5. The trees are stacked, limbs have been removed or pushed into piles and burned – tending to prove the trees were cleared on purpose;
6. The trees were cleared in a way that avoided damaging infrastructure or other valuable natural features – tending to prove it was at the direction of someone who has an interest in the property;
7. The landowner previously enquired from Council about conducting specific clearing on the property but never lodged an application and the clearing matches what was asked about – tending to prove the person who made the enquiry was the person who conducted or authorised the clearing; and
8. The clearing looks like it took several days to complete and the landowner lives on the property – tending to prove the landowner was aware of what was happening on the property.
As you can see, none of these 8 facts, by themselves, prove who conducted the clearing but when taken together as a whole they prove another fact, that the alleged offender conducted the clearing.
Disproving any reasonable explanation consistent with innocence
You do not need to disprove every possible scenario, only those that are reasonable in the circumstances. Often the circumstantial evidence not only proves the facts indirectly, but it also disproves possible explanations.
Taking the example above, the evidence makes it unreasonable to say that someone broke into the property with heavy machinery for several days and did the clearing without the landowner knowing.
During site inspections it is important to canvas the alleged offender’s version of events and ask them why circumstantial evidence is there. The alleged offender can then be asked follow up questions to assess the reasonableness of their version and may lead to further circumstantial evidence that disproves their version.
Previous council investigation “Massage Parlours”.
Taking the above and applying it to massage parlours, separately enclosed rooms, ATM machines, condoms, adult toys, sexual websites and lubricant have been found during inspections. The lubricant, separate rooms and ATMs may need follow up questions to disprove possible reasonable explanations consistent with innocence but the condoms, sexual websites and adult toys will obviously be harder to explain away. The case law tells us that if the alleged offender refuses or cannot give an explanation about circumstantial evidence then that can be used against them to infer the fact sought to be proved.
When you’re looking for circumstantial evidence (facts) that tends to prove another fact (an element of the offence) think about:
a. What is out of place? – are there locks on the doors to massage rooms? Does the place only deal in cash? Does it use obscure/curious words to describe treatments? Are there black out shades to cover the windows? Does it have unusual hours of operation (eg. open late into the night)?
b. What should and should not be there? – (eg. adult toys and condoms)
c. Take notice of all of the surroundings and ask follow up questions to give the people a chance to explain why something is the way it is.
The Hearsay Rule (Qld)
The hearsay rule is one of the most fundamental and best-known rules of evidence. At common law, the rule is that evidence of a statement made by another person is not admissible in order to establish the truth of the statement. In Queensland, the rules regarding evidence about statements made by others are set out in Part 6 of the Evidence Act 1977.
What is the hearsay rule?
The hearsay rule holds that evidence of what someone else represented to be true cannot be given in order to establish its truth. As well as statements, representations include conduct and the inferences that it conveys to the listener or watcher. For example, saying nothing when an allegation is made can amount to a representation that the allegation is true in circumstances where the listener would be expected to respond to the allegation with a denial or an explanation.
Written statements are also generally inadmissible hearsay unless they are adopted by the author in oral testimony.
The hearsay rule exists because evidence of what a person has heard another person say is generally not a reliable way of proving the existence of a fact. Parties to criminal matters are not permitted to call hearsay evidence, except where an exception applies.
Case Law: Subramaniam v Public Prosecutor
The 1956, Privy Council decision of Subramaniam v Public Prosecutor established the scope of the hearsay rule. In that decision, the court held that hearsay evidence can be admissible in certain circumstances, such as when it is the only available evidence and when the statements were made in circumstances that provide sufficient guarantees of their reliability.
The court also emphasized that judges must carefully assess the reliability of hearsay evidence before admitting it, considering factors such as the credibility of the witness who made the original statement, the circumstances in which the statement was made, and any corroboration or inconsistencies in the evidence.
The Privy Council summarised the hearsay rule as follows:
‘Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.’
When evidence of a statement is not hearsay
A common example of where evidence of what another person said is not inadmissible hearsay is when a person is charged with making a threat. In that situation, a witness’s testimony that they heard the accused make the threat would be admissible as it would be used to prove that the threat was made and not that the statement the accused made was true.
Queensland Evidence Act
The Evidence Act 1977 contains several provisions relating to the admissibility of evidence of previous statements in specific situations. Some of these are outlined below.
Documentary evidence (common in council prosecutions)
Under section 93 of the Evidence Act 1977, documentary evidence of a fact is admissible in criminal proceedings in circumstances where oral evidence would be admissible if:
The document is part of a business record made by person with personal knowledge of the matters it deals with; and
The person who recorded the information is dead, unfit to attend to give evidence because of a mental or bodily condition, our of the state and unable to attend, cannot be found or identified or cannot be expected to remember the matters dealt with in the document.
Statements made by children
Under section 93A of the Evidence Act 1977, in a proceeding where oral evidence of a fact would be admissible, a statement contained in a document is admissible evidence of that fact if:
The maker of the statement is a child or a person with a mental impairment who had personal knowledge of the matter; and
The maker of the statement is available to give evidence.
Previous inconsistent statements
Under section 18 of the Evidence Act 1977, if a witness makes a statement during their testimony that is inconsistent with a previous statement they have made, proof of their earlier statement may be adduced and this does not amount to hearsay.
Where person is unavailable
Under section 93B of the Evidence At 1977, when a person cannot give evidence because they are dead or incapacitated, another person who heard or perceived a representation that the person made based on personal knowledge may give evidence of the representation if:
It was made at the time of or shortly after the matter
It was made in circumstances where it is highly likely to be reliable;
It was against the interests of the person who made it.
It is worth noting that where evidence is admitted under this provision at trial, the jury must be given a warning that hearsay evidence may be unreliable and must be approached with caution if a party requests that this warning be given.
Documents produced by devices (common in council prosecutions)
Under section 95 of the Evidence Act 1977, a statement contained in a document or thing produced by a device or process is admissible as evidence of a fact.
