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Evidence Law

Assignment 1

Word Count: 1989

I INTRODUCTION
This essay will explore the evidence that can been used and will advise Nick on how the evidence may be used. The Evidence Act 1995 (NSW) will be used alongside relevant case law. Mainly civil legislation will be used but some case law is in the criminal jurisdiction.

II RELEVANCE
The evidence in this essay is relevant and meets requirements set out in s 55 of the Evidence Act 1995 (NSW) that the evidence could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.1 If the evidence wasnt relevant it would not be admissible and I would not advise Nick on it. The sources of legal authority that will be used in this essay are the Evidence Act 1995 (NSW) and relevant case law. s 12 of the Evidence Act 1995 (NSW) shows that unless otherwise stated, everyone is competent to give evidence and whoever is competent to give evidence is compellable.2 The witnesses that will be called are Nick, Lynne and Helga. The documentary evidence that will be used is the Mortgage and bank records, the old Wills of David and Lynne, the statutory declaration and the legal document that Nick signed to transfer his 50% interest in the house over to his parents.

III HEARSAY
The hearsay exception was first created in Subramaniam v. Public Prosecutor where it was said by the Privy Council that to rule out evidence that was said to a witness by a person that is not a witness is not automatically hearsay.

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Evidence Act 1995 (NSW) s 55. Ibid s 12

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 I was made.3 This case has been cited many times in recent legal history and can be thought as the foundation of modern hearsay.

IV DOCUMENTS
MORTGAGE AND BANK DOCUMENTS Bank statements and records meet the definition of a document in the Evidence Act 1995 (NSW) dictionary and are relevant to and would support the fact that Nick continued to meet 50% of the mortgage payments and the upkeep of the house. s 48(e) of the Evidence Act 1995 (NSW) allows a party to adduce a record of this document as evidence if it forms part of the records of or kept by a business.4 The bank records should be printed off and presented to the court and s 147 of the Evidence Act 1995 (NSW) applies. It is to be assumed that the printer at the bank produced the copies.5 When producing copies of the bank records it will need to be clear that the documents are official bank documents and someone from the bank may need to testify to their authenticity. Documents do not prove themselves and National Australia Bank v Rusu has shown us the court may not be satisfied that documents are what they are claimed to be if no one has testified or signed an affidavit stating they are authentic.6 Another way that the documents can be proved is shown in Australian Securities & Investments Commission v Rich. By producing providence evidence showing that the business records were printed from a file that was stored on the banks computer systems it would satisfy

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Subramaniam v. Public Prosecutor (1956) W.L.R. 965. Ibid s 48(e). 5 Ibid s 147. 6 National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 (Bryson J) [15] [42]

the standard of proof under s 142 of the Evidence Act 1995 (NSW).7 The hearsay exception that applies to the documents is shown in s 69(1)(a)(i) of the Evidence Act 1995 (NSW) and is also stated in National Australia Bank Ltd v Rusu forms part of the records belonging to or kept by a by a person, body or organisation in the course ofbusiness.8 Roach v Page show that these documents do qualify as business documents as they record activities of the business9. The court also has the power to examine the documents and make a reasonable inference about its authenticity.10

STATUTORY DECLARATION David signed a statutory declaration in 2010 stating that Nick 50% share of the house was held on trust for Nick. This may be classed as unreliable evidence under s165 of the Evidence Act 1995 (NSW) due to Davids dementia.11 To be admitted, Davids competence would need to be established under s 13 of the Evidence Act 1995 (NSW) and evidence in relation to Davids health, such as medical records would be needed to prove that he was competent.12 Unless it is proved otherwise, it is to be presumed that David was competent to sign the statutory declaration under s 61(3) of the Evidence Act 1995 (NSW).13 s 60(1) allows the admittance of the statutory declaration to prove that it does exist and would support Nicks version of events. This section does not allow us present what is contained in the document, only to prove that the document exists.14

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Australian Securities & Investments Commission v Rich (2005) NSWSC 417 (Austin J) [120] Above n 5, 20 9 Roach v Page (2003) NSWSC 939 (Sperling J) [15] 10 Above n1 s 58 (1) 11 Ibid s 165 (1)(c) 12 Ibid s 13 (1)(b) 13 Ibid s 61 (3) 14 Ibid s 60(1)

WILLS It is known that Lynne and David changed their Wills so when both of them died, 50% of the house would be given to Nick. It is also know that since then, Lynne has changed her will again to exclude Nick completely. These Wills are relevant as they help prove the existence of the fact that Nick owns 50% of the house.15 Lynne may not produce her old Will for evidence to prove the contents of the Will but s48 of the Evidence Act 1995 (NSW) provides a method whereby the solicitor who made the Wills could testify that they are authentic.16 If Lynne is competent to give evidence she is compellable17 and under s 21 of the Evidence Act 1995 (NSW) she must take an oath or affirmation18 which will require her to tell the truth about her previous will if called to be a witness.

LEGAL DOCUMENT Nick signed a legal document transferring his interest of the house into his parents names. This document may be part of an official record with the relevant government authority and can be proved by showing that it was printed from a government or another official printer of the state or authority.19

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Above n1 s 55 Ibid 48 (4)(a) 17 Ibid s 12 18 Ibid s 21 19 Ibid s 155, 48(f)

V WITNESSES
LYNNE Under s44 of the Evidence act, Lynne may be cross examined and questioned about the statutory declaration, if it had been admitted or was going to be admitted.20 Lynne may not know about the statutory declaration but she would be familiar with the agreement and would have to tell the truth in court which would give Nicks counsel a chance to further prove that Nick had an agreement regarding the house. NICK Nick could give evidence about the conversation that he had with David in the company of Lynne in 1974. It would be as it is relevant to proving the fact 21 that Lynne and David did agree to hold the share of the house in a trust for Nick. Under s60 of the Evidence Act 1995 (NSW), there are two hearsay exceptions that would be of use in this piece of evidence. The first is s63 where the maker of the representation, David, is not available. David falls under the unavailability of persons category in the Evidence Act 1995 (NSW).22 The other exception that can be used to allow Nick to give evidence is s66A which shows that because the representation made my David was about his intentions, in that he intended to hold 50% of the house for Nick, the hearsay rule doesnt apply.23 Nick would be able to give evidence under s 63(1) of the Evidence Act 1995 (NSW) as he was there when David signed the statuary declaration and therefore witnessed the representation.24 The court may still examine the statutory

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Above n 1 s 44(2) Ibid s 55 22 Ibid Dictionary part 4(1)(a) 23 Ibid s 66(a) 24 Ibid s 62 (2)(a)

declaration and draw an inference from it relating to both its authenticity and its identity.25 HELGA It is known that Nicks son Matthew was present at several conversations between Nick and David. Although Mathew was not a party to the conversations between his father and David regarding the house arrangements, he did experience them directly. Under s 62(2) of the Evidence Act 1995 (NSW) Mathew, if available, could give evidence of what he perceived, A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact26. Mathew would have original evidence of what David said to nick regarding the house as he perceived it directly through one of his five senses, in this case he through his hearing.27 He has hearsay evidence regarding the truth of what David said. Helga was told in detail about David and Nicks conversations. s 60 of the Evidence Act 1995 (NSW) will allow Helga, Mathews girlfriend, to testify that the conversations between Mathew and David took place, but not what was said in the conversations. This section allows an exception to the hearsay rule if the evidence is used to only prove that the conversations took place28. Mason CJ sums it up well in Walton v The Queen

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Ibid s 58(1) above n 1, s 62(2) 27 Lithgow City Council v Jackson (2011) 85 ALJR 1130 [3] 28 above n1 s 60

The hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts are as asserted in the statement. Generally speaking, evidence of out-of-court statements relied on for another purpose is not excluded by the rule29 Mathew would fall under the Evidence Act 1995 (NSW) dictionary as not available to give evidence only if they satisfy the condition that all reasonable steps have been taken to find him and ensure he attends court.30 For this definition to apply, R v Kazzi show that is it is very important for the Police or another party, to make enquiries to the whereabouts of Mathew both in Australia and abroad but due to the limited information regarding Mathews whereabouts it would be understandable that the police are limited to what they can do.31 Another consideration for Helga giving evidence is s 66 of the Evidence Act 1995 (NSW) where it needs to be determined if the facts of the conversation that Mathew overhead were fresh in his mind when he told Helga about them.32 There are no strict provisions on how to determine if a fact was fresh in the memory of the person but in Graham v The Queen it is said that 6 years is too long and the time required would likely be hours and days.33

VI CONCLUSION
This essay has provided examples of the evidence that can be used to assist Nick and some case law examples have been given of when the Evidence Act 1995 (NSW) has been used. Nick has substantial evidence showing he is entitled to his share of the house. A major goal will be to gather enough medical evidence to

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Walton v R (1989) HCA 9 above n 1, Dictionary 4 (1)(f) 31 R v Kazzi (2003) NSWCCA 241 Ipp JA [12] 32 Above n 1, s 66 33 Graham v The Queen (1998) HCA 61 (Gaudron, Gummow and Hayne JJ) para [4]

show that David was competent to fill out the statutory declaration. Finally, Davids will is unchanged and will allow Nick to at least 25% of the house.

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Bibliography
Cases Australian Securities & Investments Commission v Rich (2005) NSWSC 417 Butera v DPP (1987) 164 CLR 180

Clark v Stingel (2007) VSCA 292

Kingham v Sutton (No3) (2001) FCA 1117

Graham v The Queen (1998) HCA 61

Lithgow City Council v Jackson (2011) 85 ALJR 1130

Papakosmas v The Queen (1999) 196 CLR 297

Sinclair v The King (1946) HCA 55

Subramaniam v. Public Prosecutor (1956) W.L.R. 965

Walton v R (1989) HCA 9

Legislation Evidence Act 1995 (NSW)