Topic 8 – Documentary Evidence General Before a document is admitted into evidence it must be

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Topic 8 – Documentary Evidence

  • Before a document is admitted into evidence it must be:

  1. Relevant;

    • Documents are subject to the same rules of relevance as every other item of evidence is.

    • If you're relying on the content of a document then you've got to show that its content is relevant in the sense that it rationally effects an assessment of the probability of the existence of a fact in issue if believed.

  1. Not breach any exclusionary rule, (eg., not hearsay); OR

    • Documents are subject to the same exclusionary rules as other items of evidence.

    • The principle exclusionary rule w.r.t documents is the hearsay rule.

      • Myers v. DPP

      • where a document would have proved the crowns case but was inadmissible due to hearsay, despite its weight

  1. Be within an exception to the relevant rule.

    • In addition, there are special rules as to how the document is proved.

    • The Evidence Acts contain extended definitions of documents and they incorporate into the notion of the document all sorts of things that the CL do not.

      • Definitions apply for any matter under the Evidence Acts but NOT under the CL.

      • Therefore you must determine whether you are making a point of admissibility or non- admissibility under the statute or whether it is under the CL.

  • Producing” and “Tendering a document”

  • There are two aspects of the use to documents in court:

    1. Production

      • This is how the court gets to look at a document.

      • You normally produce documents through a witness who is in the box.

      • You get the witness to identify the document and to explain its relevance and significance in the case. This process is known as production. But at this point the document is not yet evidence b/c it has only been made available for inspection.

    1. Tender

      • Formal rules apply to documents sought to be tendered.

      • Once document has been produced, if you wish to tender it, ( put into evidence and make it available for consideration), you need to establish its relevance and its admissibility.

      • In the production process the witness explained what the document was and therefore that covers the relevance point. The next crucial question might be 'Is that your signature on the document?' The answer 'yes' to the question makes the document admissible which means that the hearsay rule doesn't apply.

      • It is considered to be the evidence of the witness. They are incorporating the document into their own testimony. It is no longer a statement from outside the court but from the witness box.

      • It is the act of tender which places the document before the court as an item of evidence.

  • Document at Common Law

  • Any medium on which there is an inscription or writing or figures.

  • Excludes video tapes, photos, tape recordings.

  • Evidences Acts extend this, but only for the purposes of those Acts.

  • 2 main rules:

    1. Original must be produced.

    2. Must be authenticated.

1. Best Evidence Rule

Common Law
Original Evidence Rule

  • For the content of a document to be received as evidence the document has to be the original and a copy will NOT do.

    • It applies to cases in which direct reliance is placed on the words used in a document.

    • The rule does NOT prevent reference being made to the terms of a document for the purpose of identifying it – ie not relying on the contents of the document, simply on its existence).

  • Qualifications to Common Law requirement of original evidence:

    • best evidence includes evidence produced at the same time, therefore a carbon copy is original evidence.

    • where there are 1 or more copies of the document, each fully executed by both parties, then each copy is considered to be an original; Forbes v Samuel.

  • In Butera v DPP, Dawson J referred to the common law rule in the following terms:

“the effect of a document must be proved by the production of the original document itself and not by secondary evidence of its contents unless the absence of the original is accounted for and excused. That rules appears to have preceded the so-called best evidence rule which is said to require the best evidence to be given which the nature of the case permits…The failure to observe the best evidence rule in practice has led textbook writers to conclude that it no longer exists, save as a convenient and concise description of the rule relating to the proof of the contents of written documents, and that it is only in that form that it has survived…”

Commissioner for Railways v Young

  • A doctor who had taken a sample was asked what he had written on the jar and the question was objected to.

  • The doctor who analysed the blood was asked what was written on the jar and the question was objected to.

  • Therefore no link could be shown between the blood drawn and the blood analysed.

  • The matter went on appeal to the High Court.


  • The first objection was unfounded because all the doctor was doing was identifying the document and therefore should have been able to tell the court that the document was the label that had the name of the deceased on it.

  • The second doctor could then have made the link.

Secondary Evidence

  • Copies.

  • Oral testimony about a document:

    • if the contents of the document aren’t relevant, evidence of the existence of the document can be led without producing the document BUT

    • if the contents of the document are relevant, the original must be produced.

  • Example:

    • Lease:

      • you don’t need the original lease to prove that a lease exists BUT

      • you will need to produce the original lease to prove its terms.

  • R394 UCPR allows a court to dispense with strict rules of evidence regarding proving documents in particular where there would be undue delay or expense in proving a document (or undue difficulty) so that secondary evidence can be accepted.


  • Best Evidence rule exists

  • There are however many exceptions


  • It doesn't exist under the CEA b/c s.51 CEA abolishes it.

Exceptions to the General Rule

  • Cases where the contents of a document MAY be proved by secondary evidence, eg. by a copy or by oral evidence of content.

1: Failure to Respond to Notice to Produce

  • Don’t have to produce at CL, but if they don’t, may rely on secondary evidence.

    • R 227 UCPR – the other side must produce, in response to any notice to produce, any document that is disclosed under the disclosure rules;

      • the rules require disclosure of any document that is relevant or may be relevant to facts in issue.

    • CF: Subpoena duces tecum – requires a party to produce a document to the court BUT must comply with admissibility rules to be tendered in evidence.

    • Cannot serve a notice to produce on an accused in a criminal trial.

    • However, if the accused gives evidence, they can then be compelled to produce any relevant document.

  • Hindson v Monahan

    • Magistrate rejected oral evidence that a breathalyser had a certain label attached to it (thus showing it was a prescribed breath analysing machine), as the informant had not produced the machine in court in response to a notice to produce.

    • HELD ON APPEAL – that not a document so no need to produce machine;

  • Good point made about a Notices to Produce in Ewart v Royds, was that such a notice given to a party is merely to give that party sufficient opportunity to produce that document if he/she pleases. If, after a proper notice is given, there being evidence that the original was in his/her possession, the party refuses to produce, secondary evidence is then admissible.

  • Note that if party does not comply with NTP, then they are not at liberty to produce the document later for their own purposes, even if that purpose is only to refresh the memory of their witness in the box; Doe d Higgs v Cockell.

2: Lost or Destroyed Document

  • Lost document or destroyed document – must convince the judge on voir dire and tender the document: R v Kenilworth (Inhabitants)

  • Factors such as whether the evidence is satisfactory, whether the search has been made bona fide, whether there has been due diligence…taking into account the nature of the instrument, the time elapsed and numerous other circumstances which must vary with every case.

  • Destruction – secondary documents are usually allowed except where there is a suspicion of fraud regarding the destruction of the document.

3: 3rd Party’s Lawful Refusal

  • Bell v David Jones Ltd

  • Where the original document is in the hands of a person who cannot be compelled to produce it, prima facie failure on his part to produce it does not entitle the party who subpoenaed him to give secondary evidence of its contents;

  • But, if the document is one which he is not by law compellable to produce, for example on grounds of privilege, and he refuses to produce it, the party who issued the subpoena is entitled to give secondary evidence of it by means of a copy, if he has one, no matter how he may have procured the copy.

4: Production Of Original Impossible

  • Owner v Bee Hive Spinning Co Ltd:

    • The reasoning in the above case (the facts of which are not relevant) would permit secondary evidence of the contents of traffic signs, driving licenses, car registration labels, highway advertising boards and the like.

    • Essentially where production would cause destruction or public inconvenience.

  • This exception also permits secondary evidence to be given of the contents of public registers, records or documents; Mortimer v M’Callan.

5: Public documents

  • Register of Births Deaths and Marriages.

  • Land Title Register

  • s 51 QEA – examined or certified copy admissible.

  • s 56 re: Crown land grants.

  • s 55 – proof of incorporation of a company.

  • s 74 – Births, Deaths and Marriages.

6: Statutory Provisions

  • QEA s 85, s 97.

  • QEA s 116 makes admissible all photocopies and facsimiles of documents to the same extent as the original document.

  • Note ss 124, 125 re judicial discretion and considerations of weight, and ss 117-123 and 126-128 generally.

  • Note also ss 44, 46-49, 51-53, 55-58, 68-69, 71-72 and 74 which all permit the tendering of various types of copies in the specific areas with which they deal.

  • Read CEA s 48, note ss 146-148 and ss 153-159.


  • ss 83 – 91 – Can prove entries in books of account.

  • Pt 7 – Reproduction of Documents

97 Authentication

Where in any proceeding a statement contained in a document is proposed to be given in evidence by virtue of this part, it may be proved by the production of that document or (whether or not that document is still in existence) by the production of a copy of that document, or the material part thereof, authenticated in such manner as the court may approve.

116 Copies to be evidence

Notwithstanding any other provision of this part, where a document has been copied by means of a photographic or other machine which produces a facsimile copy of the document, the copy is, upon proof to the satisfaction of the court that the copy was taken or made from the original document by means of the machine, admissible in evidence to the same extent as the original document would be admissible in evidence without--

  1. proof that the copy was compared with the original document; and

  2. notice to produce the original document having been given.


  • s 51 abolishes the best evidence rule.

  • s 48 – regime by which secondary evidence may be used to prove documents.

  • s 48(4) – reflects a number of common law exceptions

    • copies/oral evidence may be given where the document is not available (look at dictionary) as follows:

      • can’t be found after a reasonable search;

      • where destroyed;

      • impractical to produce;

      • not in possession of another party and can’t be obtained;

      • in possession of other party and they would know it is relevant to the proceedings.

  • s 48(1) – secondary evidence is allowed whether or not a document is available:

    • admission by other party as to contents;

    • photocopy;

    • public documents;

    • business records.

48 Proof of contents of documents

  1. A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:

    1. adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question;

    2. tendering a document that:

      1. is or purports to be a copy of the document in question; and

      2. has been produced, or purports to have been produced, by a device that reproduces the contents of documents;

    3. if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)—tendering a document that is or purports to be a transcript of the words;

    4. if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it—tendering a document that was or purports to have been produced by use of the device;

    5. tendering a document that:

      1. forms part of the records of or kept by a business (whether or not the business is still in existence); and

      2. is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary;

    6. if the document in question is a public document—tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed:

      1. by the Government Printer or by the government or official printer of a State or Territory; or

      2. by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country; or

      3. by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament.

  2. Subsection (1) applies to a document in question whether the document in question is available to the party or not.

    1. If the party adduces evidence of the contents of a document under paragraph (1)(a), the evidence may only be used:

      1. in respect of the party's case against the other party who made the admission concerned; or

      2. in respect of the other party's case against the party who adduced the evidence in that way.

    2. A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by:

      1. tendering a document that is a copy of, or an extract from or summary of, the document in question; or

      2. adducing from a witness evidence of the contents of the document in question.

Note 1: Clause 5 of Part 2 of the Dictionary is about the availability of documents.

Note 2: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents.

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