Evidence paper, part 4 (hearsay basics)

I cannot say that readers have been vocally demanding part 4 of my evidence paper in the period since part 3 appeared on 7 April 2010.  Nevertheless, in case anyone remains interested, here it is, with the balance to follow with a little more regularity.  I have created a category specific to this series of posts, being the serialisation of my evidence paper: click on it in the index page (or in the list of categories in the side bar of this page) to be taken to all of the posts comprising the series. Continue reading “Evidence paper, part 4 (hearsay basics)”

Evidence paper, part 5 (reviving memory)

This is part 5 of the serialisation of my evidence paper.  The previous posts are here.

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‘One reason why the solicitor might not be able to give evidence in the orthodox manner is that he could no longer remember the conversation which might have been a decade earlier.  In theory, under the common law, he could not give evidence of it, and the file note would be hearsay if used to prove that what it recorded having been said was in fact said: it would be analogous with the note of the DVD’s serial number in the third example of hearsay in the notes to s. 59.

In practice, a blind eye has been turned to witnesses giving evidence of things they can no longer remember, by reference to their contemporaneous notes and papers, either before court or in the witness box, and the Evidence Act, 2008 dispenses with the pretence: sections 32 and 34 are headed ‘Attempts to revive memory …’, in contrast to the old language of ‘refreshment’.  So the solicitor could give the evidence from the witness box, or in his affidavit, after having attempted to revive his memory by reading the file note. The solicitor could in fact, with the court’s leave, read out the contents of the file note, and if necessary provide interwoven testimonial explanation: s. 32(3).  In either case the client could call for its production: ss. 32(3) and 34(1), even if privileged,[1] without fear that the solicitor could compel its tender as a result: s. 35.

[1] Grundy v Lewis [1998] FCA 1537; Spalding v Radio Canberra Pty Ltd [2009] ACTSC 26; see also my blog here.

Evidence paper, part 3 (hearsay introduction)

This is the third instalment of my evidence paper.  Part 2 is here.


Litigation involving lawyers is typically document-heavy.  Lawyers usually record more things on their files in more detail than most people.  Court files contain a detailed record of the history of a matter, even to the near-unique extent of oral and written transcript of hearings.  Many clients these days communicate heavily with their lawyers by email in place of what formerly was said on the phone.  For that reason, this paper starts with an analysis of the problems of documents which are rarely the focus of writing on evidence which is almost exclusively produced by those for whom the criminal trial is the paradigm forum in which the law of evidence stands to be analysed. Continue reading “Evidence paper, part 3 (hearsay introduction)”

Evidence paper, part I (introduction to the new law)

Now I know my posting on the new Evidence Act has been a bit sporadic, and disordered, but now I’ve written my research paper on the subject, and whereas before I was subjecting you to the offcuts I discarded along the way, now I am going to subject you to a serialised version of the essay, probably embroidered a bit as I go, and with the errors pointed out by Associate Professor Palmer expurgated.  I appeared in my first trial involving the new laws the other day, in the County Court.  It was all very anti-climactic: the new Act did not even get a mention.  Anyway, for what may seem like the third time, an introduction to the new laws of evidence:

‘Victoria’s Evidence Act, 2008 commenced on 1 January 2010.  How it will affect civil litigation remains to be seen.  Because the common law, modified by the Evidence Act, 1958 often either defied common sense so profoundly or was inaccessible in intelligible form, there developed a substantial body of civil litigation in which the rules of evidence were not in fact applied, and some other fuzzy, unspoken rules varying between jurisdictions and even lists, were applied instead. Continue reading “Evidence paper, part I (introduction to the new law)”