The documentary evidence provisions

6.5 Part 2.2 of the uniform Evidence Acts contains the principal provisions dealing with documentary evidence. These are ss 47–51.

6.6 Section 48 sets out the ways in which the contents of a document can be proved. In addition to tendering the document itself, these include:[8]

  • by an admission of a party to the proceedings as to its contents;[9]
  • by tendering a copy of the document;[10]
  • if the document is an article or thing that records sounds, or in which words are recorded as code (such as shorthand writing), by tendering a transcript of the recording or decoded words;[11]
  • by tendering a document produced by use of a device to retrieve stored information;[12]
  • by tendering a copy or summary of, or extract from, a business record;[13]
  • by tendering a copy of a public document;[14] and
  • if the document is ‘unavailable’,[15] or if the existence and contents of the document are not in issue, by tendering a copy, summary or extract of the document, or by adducing oral evidence of its contents.[16]

6.7 Other provisions of the uniformEvidence Acts dealing with documentary evidence address matters including:

  • inferences as to the authenticity of a document;[17]
  • the hearsay rule and its exceptions;[18]
  • documents produced by processes, machines and other devices;[19]
  • evidence of official records, Commonwealth documents and public documents;[20]
  • presumptions about the sending and receipt of documents;[21]
  • requests to produce documents or call witnesses;[22] and
  • proof of certain matters by affidavits or written statements.[23]

6.8 In DP 69, the Commissions noted that the documentary evidence provisions of the uniform Evidence Acts have been largely successful in balancing the interests of the parties with facilitating the admission of documentary evidence.[24] The Commissions considered the following issues:

  • the absence of legislative definition of the expression ‘summary document’ in s 156;
  • the reliability and accuracy of computer-produced evidence and the operation of ss 146 and 147 of the uniform Evidence Acts;
  • the application of s 71 of the uniform Evidence Acts to communications more broadly defined than ‘electronic mail’; and
  • evidence of official records.[25]

6.9 This chapter discusses these issues and the proposals for reform outlined in DP 69 and considers responses to the proposals in submissions and consultations. It also considers three further ideas for reform which were not expressly canvassed in DP 69 but were subsequently raised in a number of submissions:

  • the timing of an application under s 50 of the uniform Evidence Acts;
  • presumptions facilitating proof of the sending and receipt of electronic communications; and
  • the admissibility of banking records.

[8] Odgers raises the question whether the ‘or’ is disjunctive in the sentence, ‘A party may adduce evidence of the contents of a document in question by tendering the document or by any one or more of the following methods: …’. That is, if a party tenders the document itself, does this preclude also tendering additional evidence by one of the other methods: S Odgers, Uniform Evidence Law (Bulletin 10, Law Book Co, Sydney, 2005), 3. This argument was raised in R v Georgiou [2005] NSWCCA 237, but not resolved. Odgers suggests that the better view is that the provision should be read as if it contained the words, ‘or, or as well as’.

[9]Uniform Evidence Acts s 48(1)(a). The admission can only be used against the party who made the admission, or who adduced evidence of it: s 48(3).

[10]Ibid s 48(1)(b). It need not be an exact copy as long as it is ‘identical in all relevant respects’: s 48(2).

[11]Ibid s 48(1)(c). See R v Butera (1987) 164 CLR 180 and R v Cassar [1999] NSWSC 436 on the admissibility of tape recordings. The latter case considers the combined effect of the common law and s 48(1) of the Evidence Act 1995 (Cth).

[12]Uniform Evidence Acts s 48(1)(d).

[13]Ibid s 48(1)(e).

[14]Ibid s 48(1)(f). Providing that it is, or purports to have been, printed: by the Government Printer or the state equivalent; by authority of the government or administration of the Commonwealth, a state or territory or a foreign country; or by authority of parliament: Uniform Evidence Acts s 48(1)(f). A ‘public document’ is defined to mean a document that forms part of the records of, or is being kept by or on behalf of: the Crown; a foreign government; or a person or body holding office or exercising a function under the Constitution, an Australian law or a foreign law: Uniform Evidence Acts Dictionary, Pt 1.

[15] A document is defined ‘not to be available’ if and only if: it cannot be found after reasonable inquiry and search; it was destroyed (by or on behalf of the party otherwise than in bad faith); it would be impractical to produce it; its production could render a person liable to conviction; it is not in the party’s possession or control and (i) it cannot be obtained by any judicial procedure of the court; or (ii) it is in the possession or under the control of another party to the proceeding concerned who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding; or (iii) it was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding: Uniform Evidence Acts Dictionary, Pt 2, cl5.

[16]Ibid s 48(4).

[17]Ibid s 58. Section 58(1) provides: ‘If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.’

[18]Evidence Act 1995 (Cth) Ch 3 Pt 3.2; Evidence Act 1995 (NSW) Ch 3 Pt 3.2; Evidence Act 2001 (Tas) Ch 3 Pt 2; Evidence Act 2004 (NI) Ch 3 Pt 3.2.

[19]Uniform Evidence Acts ss 146–147.

[20]Ibid ss 155–159; except s 155A of the Evidence Act 1995 (Cth) which has no equivalent in the New South Wales and Tasmanian legislation.

[21]Uniform Evidence Acts ss 161–162; see also s 163 of the Evidence Act 1995 (Cth). Section 5 of the Commonwealth Act extends the operation of s 163 to all Australian courts.

[22]Uniform Evidence Acts ss 166–169.

[23]Ibid ss 170–173 (except that the definition of ‘authorised person’ differs between the Acts).

[24] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Ch 6, [6.11].

[25] Ibid, Ch 6.