REAL AND DOCUMENTARY EVIDENCE

Evidence is normally given to the court by witness who are present and speak at the trial. However there are other forms of evidence which may also be used.

Documentary Evidence
Documents can in some circumstances be used as evidence. Documents may be allowed as an exception to the hearsay rule (see HEARSAY AND ITS EXCEPTIONS).

At common law the ‘best evidence rule’ requires that the original document to be produced. However in Western Australia due to legislation now a copy is permitted where it is an accurate reproduction. Documents under common law also had to be shown to be an authentic document but now legislation means that it simply must be shown to be relevant.

If the document is one which has a legal effect it must be shown that the formalities were complied with. This will depend on the facts. It may be a signature by the author of the document, the fact that the witness saw the document being signed or where someone has special expertise or experience in identifying writing.

At common law for purposes of comparison of writing other genuine writing could not be used unless it was itself admissible evidence. This has now been changed as long as what is disputed is the genuineness of the writing and that the document used for comparison has a sufficient evidential basis. Public documents which have seal or signature are considered to be formally created due to legislation.

Real Evidence
Where there is an experience of the evidence by the trier of fact (as opposed to hearing a testimony of a witness) then it is real evidence. It will be accepted if it is reliable and relevant. Objects which have a connection with material facts can be used, for example a weapon.

One issue with real evidence is that the collection may have been made with impropriety by persons such as the police.

Sometimes the jury can take the objects into the jury room with them. This is not always allowed because it may cause prejudice to the accused.

Occasionally the court will have to be taken to the real evidence and it will have a ‘view of either a location or an object’. There may be a static view of something or a demonstration. It may be impractical to experience the object or event in person and instead a video or audio recording may be used. At common law you can admit such evidence if circumstances of making the recording are explained and the recording device’s reliability and that the device was used correctly are shown. Photographs are often used and sound recordings may be too.