The importance of evidence and its ubiquity

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A fundamental step when preparing for any litigious matter is to gather evidence to support your legal position.  In Queensland, the rules of evidence are located in a number of pieces of legislation, together with a large body of case law.  The focus of this article is to provide a brief overview of evidence and why it is crucial for a party to any civil litigation matter to devote adequate resources to locating it.

What is evidence?

Evidence can be described as the material placed before a Court for the purpose of assisting a Judge to reach a decision in the matter.  A Judge’s decision is limited to the evidence placed before them, therefore it is important that a party provide as much relevant evidence as possible to support their case.

Whether initiating proceedings or defending them, the first step for a party is to gather all the possible evidence that may be relevant to the matter. Common examples of evidence that may be relevant in civil and intellectual property (IP) litigation include:

• contractual documents;
• documents that relate to pre-contractual negotiations;
• searches (ASIC; land registers; property registers for example);
• phone records;
• text message logs;
• Facebook posts and messaging logs;
• video (surveillance or dash cam);
• IT forensic evidence;
• barcodes;
• sales receipts;
• recordings (although note there are rules regarding the use of secret recordings);
• emails; and
• forensic IT evidence including a variety of computer logs.

In the new millennium, it’s likely that there will be significant digital evidence (particularly forensic IT evidence) that may have been overlooked.  The skill is locating it, reviewing it and ensuring that it is in a form that is admissible to the Court.

Three categories of evidence

Once all the evidence has been identified and considered, it is important that the party determines the relevant category the evidence falls into.  Broadly speaking, evidence can be separated into three (3) distinct categories:

• oral;
• documentary; and
• real.

The distinction between these types of evidence can be important in determining the rules regarding admissibility (which we consider below).

Oral evidence

In short, oral evidence is provided by a witness during a trial.  This evidence will be provided orally by the witness, generally in response to questions asked by the lawyers for the parties (although a Judge may also ask direct questions of a witness).

Generally, a witness providing oral evidence will give evidence of circumstances and events they perceived with their own senses (as opposed to recounting someone else’s version of events, commonly referred to as ‘hearsay’).  Therefore, when seeking oral evidence for a trial, a party should consider looking for persons who have actual knowledge of the event in question and who could provide a ‘firsthand account’ of the event.

In a commercial context, while it may appear that most of the relevant evidence will be documentary or real, the importance of oral evidence cannot be overlooked.  Oral evidence will still be required to explain the relevance and context of any documentary or real evidence to the facts of the case.  As Lingertwood and Edmond explained:

‘Only with a time machine, transporting the trier [Judge] back to experience the events giving rise to the dispute directly, is it possible to envisage the absence of connecting human testimony.  Even then, some testimony would have to be given about the reliability of the time machine.’^[1]

Documentary evidence

Documentary evidence is evidence contained in a ‘document’ as defined by the Evidence Act 1977 (Qld) (Evidence Act).  Schedule 3 of the Evidence Act defines a document to include, in addition to a document in writing:

• any part of a document in writing or of any other document as defined herein;
• any book, map, plan, graph or drawing;
• any photograph;
• any label, marking or other writing which identifies or describes anything of which it forms part, or to which it is attached by any means whatever;
• any disc, tape, soundtrack or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom;
• any film, negative, tape or other device in which one (1) or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
• any other record of information whatever.

As the definition of a document is so broad, it is likely that in many civil or IP matters, the focal pieces of evidence will be documentary.  Therefore, it is important that parties are aware of what documents they should be looking for and how they may go about searching for these pieces of evidence.  Where possible, parties should seek to provide the original copies of documents that they are relying on to satisfy the ‘best evidence rule’.

Generally, the evidence that is most critical to a matter will be that which directly relates to (meaning that it tends to prove or disprove) an allegation in issue in the matter.  For example, in a contractual dispute, the contract itself will be a critical piece of documentary evidence as it proves the terms of the contract which are alleged to have been breached.

Real evidence

Real evidence is used to describe evidence of a ‘thing’ or ‘item’ or similar which proves the existence of a fact.  For example: a car the subject of a lease which a security interest has been take over; a computer which downloaded confidential information; or, shirts which bear a design that infringes a person’s IP.  In these examples, the real evidence is a thing or item that tends to prove the existence of a fact – that these pieces of evidence connect the defendant to their breach.

As real evidence will be a thing or item that cannot speak for itself, it will generally be necessary to adduce oral evidence to explain the real evidence and its relevance to the matter.  For example, where a computer containing confidential information is found in the possession of a person, oral evidence from the person who located the computer will be required to explain how the evidence was downloaded to the computer in the defendant’s possession, and oral evidence from the owner of the information to identify that it is indeed theirs.

As shown, is important for parties in commercial matters to be aware of real evidence.  For example, products the focus of consumer claims or items relevant to patents or designs matters may be real evidence necessary to prove the allegations made by a party.

Direct versus circumstantial evidence

Another method of distinguishing evidence is the categorisation of ‘direct’ versus ‘circumstantial’.  In essence, direct evidence is any evidence that directly proves or disproves a fact in issue, whereas circumstantial evidence is indirect evidence that goes towards a fact in issue, but does not itself prove or disprove the fact.  Using the example of a car crash, a person who witnesses the crash and provides oral evidence to the effect of what they saw is giving direct evidence, whereas a person who saw someone running away from the car crash after hearing a loud noise (the crash) can provide direct evidence of the person running away, but only circumstantial evidence that the person was running away from the crash because they were involved.

It is important for parties in civil or IP litigation matters to be aware of the classification of evidence as direct or circumstantial.  While it may seem that direct evidence is the more important, parties must remember that circumstantial evidence can be effective to provide context to the main issues in proceedings (such as the context in which parties entered into a contract).

Admissibility

Once a party has located the evidence that it wishes to rely upon, it must determine whether or not the Judge will allow the evidence to be placed before the Court.  This is known as ‘admissibility’ (often quoted in phrases such as ‘the evidence was deemed admissible’, or conversely, ‘the evidence was deemed inadmissible’).

To determine whether or not evidence is admissible, there will be (broadly speaking), two (2) threshold issues:

• is the evidence relevant?; and
• is the evidence excluded by any rules of ‘inadmissibility’ (such as hearsay)?

While this article does not seek to go into detail on the admissibility of particular pieces of evidence, it is enough to say that parties must consider how relevant the evidence they are seeking to adduce is to a fact in issue, and whether or not it falls foul of any exclusionary rules.  This is often a complex question, and seeking legal advice can assist a party in understanding these intricacies.

Key points

Litigious matters are won and lost based on the evidence placed before the Court.  It is vitally important that parties seek, locate and gather evidence that supports their legal position.  Once this evidence has been sought, obtaining legal advice as to its admissibility, or whether further evidence should be obtained may assist parties in preparation for their matter.

Links and further references

Legislation

Evidence Act 1977 (Qld)

Further information about evidence

If you need assistance regarding a litigious matter that you are involved in, or any potential litigation, please telephone me for an obligation free and confidential discussion.

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1] A Lingertwood and G Edmond, Australian Evidence, 5^th ed, LexisNexis Butterworths, Sydney, 2010, p 575.

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