Evidence and proof in civil proceedings

To successfully pursue your case in court it is necessary to have evidence to back up your claim. You can’t just think you have a case, you must be able to prove it. Evidence can take several forms such as documents, sound and video recordings and witness statements (written statements about what the witness saw or heard). Evidence can also be given through oral statements (testimony) made at court by witnesses. There are a number of rules of evidence which have been established to ensure fairness in the trial process and to ensure that the best evidence is admitted.

In Queensland, the rules of evidence are governed by the Evidence Act 1977 (Qld). You should also have regard to any procedural rules under the Uniform Civil Procedure Act 1999 (Qld).

The facts in issue

Evidence is used to prove the “facts in issue” in a court proceeding. The facts in issue are the things you will need to prove in order for your case to succeed.

This will depend upon the cause of action or legal basis which entitles you to commence legal proceedings. For example:

In a case of negligence, a person must show that the other party owed them a duty of care, that this duty was breached and that the person suffered damage as a result.

A person claiming breach of contract must first show the existence of a contract, namely:

• That there was an agreement between the parties,
• That the parties intended to create a legal relationship and;
• That consideration (that is, something of value) was provided as part of the bargain.

Admissibility and relevance

Evidence will only be admissible (allowed into court) if it is relevant. Evidence will be relevant where its existence tends to indicate that one of the facts in issue is more or less likely. Basically, the court will ask whether the evidence you are trying to introduce would help to decide the issue(s) before it. For example, in proving a breach of duty in a negligence claim, evidence about current financial hardship is unlikely to be relevant.

Evidence can either be:

• directly relevant, where it includes an observation, perception or description of a fact in issue; or
• circumstantially relevant, where the Judge or jury can use it to draw an inference which goes towards proving a fact in issue. Things like a person’s past habits or the existence of a motive can often be used as circumstantial evidence.

Circumstantial evidence can sometimes be very persuasive. For example, in a case of personal injury arising out of a machinery malfunction, the fact that an employer had been seen inspecting the machine the previous day might be used by a court to infer that they were aware that it was not working properly.

Exclusion of evidence (“exclusionary rules”)

While generally speaking, evidence that is relevant will be admissible, there are a number of exclusionary rules that may prevent evidence (however relevant) from being admitted by a court. If a judge decides in their discretion that the evidence is outside the rules, it will be held to be inadmissible and cannot be relied upon to prove the fact in issue. Whether one of these exclusionary rules applies in your case will be decided by the judge. If the trial involves a jury, they will be sent from the court to allow the matter to be determined in their absence.

Hearsay

Probably the most important of the exclusionary rules is known as the rule against hearsay.

Evidence that amounts to hearsay will not be admitted. Basically, this means that a person (person A) cannot give evidence of something another person (person B) said in an effort to prove that what was said by that person (person B) was true. For example, if Jeremy tells Robert that he had seen a third person, Susan, stab someone the previous day, Robert would not, as a general rule, be able to give evidence of Jeremy’s statement at Susan’s trial. Jeremy himself would have to be called to give the evidence of what he saw.

The hearsay rule applies not only to verbal statements, but also the contents of documents and non-verbal communication.

There are also several exceptions to the general rule. A statement, for example, which is made at the same time as the central event, will not be subject to the rule. For example if Robert had heard the victim yell ‘no Susan!’ while they were being stabbed, Robert would be able to give evidence of this fact.

The rule against hearsay will also not apply to statements which amount to a confession or admission. Accordingly, if Susan confessed her guilt to Jeremy, he would be able to give evidence of this confession, even though he did not see her do the stabbing.

There are several other exceptions to the rule against hearsay. Some of these are specific to information contained in documents. For further information on these exceptions consult the Evidence Act 1977 (Qld). There are also many textbooks written on evidence law that may be of use. You should check the Supreme Court Library Catalogue for these.

Opinion & expert evidence

As stated above, when a person gives evidence it must normally be a direct account of what he/she actually saw or heard. A person’s interpretation or opinion will not usually be admitted as evidence.

There are some exceptions to this general position. Firstly, a person’s opinion will be admissible where it relates to a matter within a person’s usual experience. For example, a witness will ordinarily be able to give evidence in relation to the time an event occurred, the weather or the general state or condition of an object.

Secondly, a person may give evidence of their opinion where they are an expert on a matter which falls outside the range of an ordinary person’s experience. Expert evidence may include the testimony of doctors, scientists or other specialised professionals. If your matter is a civil trial, you will be free to call expert witnesses as you see fit. It is important, however, to make sure that the witness you select has appropriate qualifications in the area of interest. If they do not, the judge may refuse to hear their evidence or disregard it.

Burden and standard of proof

Generally speaking, the person who brings an action is said to bear the “onus” or “burden of proof”. Accordingly, if you are the plaintiff (the person who commences the proceedings) it will be up to you to introduce evidence that supports your case. If you fail to do so, the case will be lost.

For a person to succeed in a court case, they must introduce evidence which is sufficiently persuasive: it is not enough simply to have more evidence than the other party. The level of evidence required in a particular case is known as the ‘standard of proof’.

In civil cases, the required standard of proof is known as the “balance of probabilities”. In simple terms, the balance of probabilities will be met if you can successfully establish that the claim you are making is more probable than not.

This can be contrasted with the standard of proof in criminal cases, which is “beyond reasonable doubt”. This means that the prosecution must bring evidence of such a standard that there would be no reasonable doubt in the mind of a reasonable person that the accused is guilty.

Presenting your evidence

There are many different types of evidence that can be used in a court case. Whatever form your evidence takes, it will need to be introduced by a witness. A witness is, essentially, someone who gives evidence in court. A witness may be called upon for a number of reasons – they may be asked to describe something they heard or saw or they will simply be required to verify that a particular document is authentic.

A witness can introduce evidence either orally in court, or by providing a written statement called an affidavit or statutory declaration which can annex documentary evidence. However, even if a witness prepares an affidavit, the other party may still require them to appear in court if they wish to cross examine them. This will be likely if the evidence is particularly significant or contentious.

For example, say you have a photograph of tyre marks on a road which you want to use to prove that the driver involved in an accident with you was negligent. To ensure fairness, it has to be proved where and when the photograph was taken to ensure that it relates to the particular collision and was not concocted. You could do this by calling as a witness the person who took the photograph, who would stand up in court and swear on oath the circumstances of taking the photograph. He or she would then be cross-examined by the other party. To make the evidence stronger, you may wish to call an expert in traffic accidents who could testify that the tyre marks show the speed of the vehicle or otherwise point to negligent driving. For the best evidence, you may also need to call an independent witness who can testify that they saw the driver driving erratically at the time of the accident.

Written or documentary evidence – disclosure

Any relevant written or documentary evidence in the form of reports, photos or witness statements will normally be provided to the other side before the hearing. The time for providing this evidence will usually be ordered by the court. The process in which each party is required to make any relevant documents it has in its possession available to the other party is called “disclosure”.

In certain circumstances, you can also compel non-parties to provide all documents relevant to the proceedings by issuing a Notice of Non-Party Disclosure.

Witness testimonies

Generally speaking, you are able to have anyone you wish appear as a witness in a court proceeding. You are also free to determine the order in which these witnesses appear. In calling witnesses, however, you will need to bear in mind the requirement that any evidence they present must be relevant. You should also note the possibility that certain evidence cannot be presented on account of various exclusionary rules discussed above.

All witnesses you intend to rely upon to give evidence should be served with a court document known as a subpoena. A subpoena compels the person named in the subpoena to appear in court. This document must be filed in the court registry before you give it to your proposed witness. If a person fails to comply with a subpoena they may be held in contempt of court (an offence for which they could be imprisoned).

You may also need to give each witness you call some conduct money to ensure they have sufficient funds to travel to court and appear in court when required.

Things to remember

In order to prove your case, your evidence has to be believed. If you say one thing and the other party contradicts what you say, then the judge (or jury) has to decide which version he or she accepts. The judge will make the decision on the basis of all of the evidence and his or her assessment of the character of each witness. The solicitor or barrister for the other side will try to question the reliability or character of you and your witnesses and point out the negative aspects of your case.

Judges are experienced in knowing what can and cannot be included in evidence. If the judge stops you from giving certain evidence, the judge is not trying to prevent you from making out your case, but rather letting you know that what you are saying will not help your case and it would be unfair to the other party to allow that evidence. The judge would make a similar decision if the other party was trying to use such evidence. You have the right to argue your points, but at the same time it is important to listen to the judge. The judge knows the rules and the law and must ensure that both sides are treated fairly.

Why not observe a court case?

You may find that the best way to get to grips with the rules of evidence in a court is by observing them in practice. This will allow you to see how a barrister or solicitor questions a witness and give you an excellent insight into court processes generally.

Most court hearings are open to members of the public. You can find out where and when court hearings will be occurring by checking the daily law-lists. The court schedule for any given day will be made available on this website by 6pm the previous evening.