The Use of Documentary and Other Evidence in NSW Trials

Throughout the trial process (whether civil or criminal), the presentation of evidence is an indispensable part of proceedings in which the relevant facts to a case are clarified and established. It is by presenting evidence that legal representatives can establish the case of their clients (or in the case of the prosecution in a criminal trial, establish the guilt of the accused). This then allows for appropriate examination of the applicable law by the Court in order to reach a suitable and just verdict.

One of the most prominent forms of the presentation of evidence is the examination and cross-examination of witnesses during the trial. This process (especially the role played by the Court in its supervision and moderation) has been discussed in the NSW context in a previous TimeBase article, and further information on the trial process can be found in the Information Resource Centre. There are, however, other forms of evidence that legal representatives may present and that the Court may examine.

Documentary Evidence

Documentary evidence refers to evidence presented in the form of documents. Documentary evidence is commonly in the form of written documentation but there is no restriction to this particular medium. Audio, photo and video recordings or other similar media can also serve as documentary evidence, directly testifying to particular facts in a case by the transferring of the information they contain. Rules concerning the presentation of documentary evidence can be found in Part 2.2 of the Evidence Act 1995 (NSW) (EA).

The first provision in this part outlines specific prescriptions concerning how the contents of documents may appropriately be cited upon consideration of issues such as the degree and nature of possession of the documents and the knowledge of their contents by the party seeking to cite them, and other factors (s 48). Also included are extra provisions for the use of documents in foreign countries (s 49), freedom for the Court to commission summaries in the event of unusually large or complex documents (s 50) and a final provision abolishing the common law rule which privileged original copies of any-and-all documentation as providing higher evidentiary value than any subsequently produced copies of the document.

Other Evidence

In Part 2.3, the EA also permits the Court to take other non-documentary forms of evidence into account by granting the Court a broad power in s 53(1) to order that a 'demonstration, experiment or inspection' be held, and granting the Court the prerogative in s 54 to draw any reasonable inference from the results of that order. Examples of this might include the inspection of a suspected murder weapon, blood spatter patterns or examples of damage to particular items of property as cannot adequately be conveyed through photographic means. These and many other examples can be examined and considered by the Court as either primary or supplementary evidence alongside documentary evidence and the testimony of witnesses. 

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Evidence Act 1995 (NSW) as reproduced on TimeBase LawOne