skip to content
Law Handbook banner image

Evidence

In a trial, a court must decide what the facts are. A court makes its determination of what the facts are based on a consideration of the evidence that is presented to it.

Evidence is all the information given directly to the court by a witness. It must comply with particular rules. This is the only information of which the court can take notice of.

Much of the Law of Evidence relevant to South Australia is contained in the Evidence Act 1929 (SA).

Below are a few common evidence issues - however the Law of Evidence has many exceptions and nuances, some of these are in the Evidence Act 1929 (SA), and some are in the common law.

Legal advice and representation is always advised for anyone charged with an indictable offence. Please see our information on Applying for Legal Aid if you are charged with an indictable offence and need legal help.

There is also coverage of the Law of Evidence in other sections of the Law Handbook. For example, see Offences against children, young people and vulnerable adults, Sexual offences, Evidence of children, young people and vulnerable adults, Evidence in sexual assault cases and Assistance for Suspects, Victims and Witnesses with Communication Needs.

Relevance

Evidence must be relevant to the issue being tried.

For example, when a person is charged with theft from a house, it would be a relevant fact that the person's fingerprints were found on the windowsill of the house, but it would not be considered relevant that the person often consumed too much alcohol or came from a family of thieves.

Hearsay

A witness will be asked to tell the court only what she or he saw or heard, not what someone else told the witness had occurred. This is hearsay evidence.

For example, a witness can say 'I saw Jill push Jack down the hill' but cannot say 'I wasn't there at the time, but Tom Piper told me that he saw Jill push Jack down the hill'.

Whether a particular piece of evidence is hearsay or not is often a difficult question to answer, as this is a complex area of law and there are many exceptions to the general rule.

Opinion

Generally, the opinion of a witness is not admissible unless the witness is an expert in the field on which the opinion is given. A doctor may be able to give an opinion on whether a particular blow may have caused the death of a person, while a non-medical witness cannot give such an opinion as evidence.

There are many rules and laws surrounding expert opinion evidence and what is allowed by the courts, in particular it has to be directly relevant to the facts in issue and the expert must have expert qualifications or experience in the relevant field.

Lay (non-expert) witnesses are able to give evidence on matters of fact, or on those things for which the experience of everyday life is sufficient, such as the weather and general identity.

Character

Generally, the prosecution cannot ask questions of a defendant which tend to show that the defendant has a bad character or has committed other offences. However, if at the trial the defendant or the defendant's lawyer tries to attack the credibility of a prosecution witness by reference to bad conduct by that witness, the court may also allow the defendant (if she or he gives evidence) to be questioned about her or his own bad character or conduct.

The defendant is entitled to raise her or his good character as an issue at the trial and to have that evidence taken into account on the question of guilt or innocence. In this case, however, the prosecution can call evidence to rebut this to show that the defendant is of bad character.

At the trial, the decision whether to attack the character of prosecution witnesses or whether to raise the good character of the defendant needs careful consideration.

Confessions

Evidence is often given that the defendant made an admission or confession of guilt. The evidence may be of a conversation in which the defendant verbally confessed or it may be a written record of questions asked by a police officer and answers given by the defendant (a record of interview). For a confession to be admissible in evidence, it must be made freely and voluntarily.

There is also the requirement that the police officers comply with Section 74D of the Summary Offences Act 1953 (SA) , recording the interview with suspects [see generally the obligations on recording interview at ss 74C-74G].

Any interview will not be admitted if it was induced by a threat, promise or untrue representation made by the police or some person in authority. The defence may object to the admissibility of a record of interview on this ground and the court will consider whether to admit it or not.

Even if a court decides that a confession is voluntary, it may be excluded if it would be unfair to the defendant to admit it. A court may also exclude a confession on the grounds of public policy. This means weighing the public interest in having offenders convicted, against the public interest in discouraging police officers from engaging in unlawful conduct during the investigation of a crime.

Evidence of a close relative

Historically, a wife could not be compelled to testify against her husband. This is no longer the case.

A close relative of a person charged with a criminal offence is regarded as competent and compellable to give evidence against that person [s 21 (1) Evidence Act 1929 (SA)]. A close relative can be a spouse, domestic partner, child or parent of the accused [s 21(9)] .

In certain circumstances a close relative who is called as a witness may be excused from giving evidence and can apply for an exemption [s 21(2)].

When considering whether to excuse such a witness, the judge must consider the risk of substantial harm to the relationship between the prospective witness and the accused and whether the witness is likely to suffer serious material, emotional or psychological harm by being compelled to give evidence. These factors have to be weighed against the gravity and the nature of the offence [s 21(3)].

A judge can grant this exemption, even where an application hasn't been made if the prospective witness is a young child (14 years old or under) or is cognitively impaired [s 21(4)].

Evidence of a journalist

Protections under Part 8A of the Evidence Act 1929 (SA), commonly referred to as shield laws, mean that a journalist cannot generally be compelled by a court to answer any question, or produce any document, that discloses the identity of a confidential informant [see section 72B of the Evidence Act 1929 (SA)].

For more information see: Laws relating to Journalists.

Sworn and unsworn evidence

Evidence given to courts is divided into sworn evidence and unsworn evidence. Sworn evidence is given when someone takes an oath or makes an affirmation before giving evidence [s 4 Evidence Act 1929 (SA)]. Unsworn evidence is evidence that is given without the obligation of an oath first being taken or an affirmation being made.

Children are able to give sworn evidence to a court, if they have a sufficient understanding of the obligation to be truthful involved in giving such sworn evidence. Even if a child cannot give sworn evidence that child may be allowed to give unsworn evidence. To give unsworn evidence a person must have a proper understanding of the difference between the truth and a lie, understand the importance of telling the truth and say to the Court that they will tell the truth when they give their evidence.

To give sworn evidence the person must have the understanding needed to give unsworn evidence but in addition must understand that in giving sworn evidence they acknowledge and accept the solemnity of taking an oath/ making an affirmation and the moral and/or legal sanctions that would follow if they fail to comply with the promise to tell the truth [s 9(1) Evidence Act 1929 (SA)].

Where unsworn evidence is given the judge must tell the jury the reason why the evidence was unsworn as opposed to sworn evidence and would almost always be required to warn the jury that they need to be cautious in deciding whether to accept it [s 9(4) Evidence Act 1929 (SA)].

Section 9 of the Act does not apply to a statement made outside of court admitted as evidence under an exception to the rule against hearsay at common law or under the Act.

Evidence of vulnerable witnesses through audio visual record

The evidence of vulnerable witnesses in certain criminal proceedings may be admitted in the form of an audio visual record if the recording was made pursuant to [Evidence Act 1929 (SA) s 13BA(3)]:

and the court is satisfied of the witness's capacity to give sworn or unsworn evidence at the time of the recording, the other party has been given a reasonable opportunity to view the recording, and the witness is available during the trial for further examination, cross-examination or re-examination. However, this will only be allowed if there is new information that has come to light since the recording was made, the witness gives additional evidence at the trial apart from the audio visual record or it is otherwise in the interests of justice to allow further examination, cross-examination or re-examination [s 13BA(5)].

If the court admits evidence in the form of an audio visual record, the judge must warn the jury not to draw from the admission of evidence in the form of audio visual record any inference adverse to the defendant, and not to allow the admission of evidence in the form of audio visual record to influence the weight to be given to the evidence [s 13BA(6)(b)].

Pre-trial special hearings

A pre-trial special hearing is, on application and under certain circumstances, available to a child of or under 14 years of age or a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions [s 12AB(14), s12AB(1)].

This type of trial is available only in trials of a charge of a serious offence against the person or of charges of contraventions of intervention orders or restraining orders [s 12AB(14)]. A serious offence against the person includes many common sexual offences, any offence involving the sexual exploitation of a child, or an offence of sexual exploitation against a person with a cognitive impairment under s 51 of the Criminal Law Consolidation Act 1935 (SA).

The hearing is also only available if the necessary facilities are readily available, it is practicable, and the arrangements can be made without prejudice to any party to the proceedings [s 12AB(1)(b)-(c)].

Once allowed this pre-trial special hearing enables the witness to give evidence before the trial with special provisions. This includes that the court must make the following provisions:

  • That the Court can change the setting in as it sees fit, such as a more informal setting;
  • If the witness has a physical disability or cognitive impairment that the evidence can be taken in a way that the Court thinks will minimise embarrassment or distress (including, if the witness has complex communication needs, communication assistance may be provided);
  • That an audio visual record of the evidence be made;
  • That the taking of evidence at the hearing be transmitted to the defendant by CCTV;
  • If the defendant attends the hearing in person, that appropriate measures be taken to prevent the witness and the defendant from directly seeing or hearing each other before, during, or after the hearing.

    [s 12AB(2)(a)]

The court may also make the following provisions:

  • That the witness can be accompanied at the hearing by a relative, friend or other person for the purpose of providing emotional support; and
  • Specify that the hearing is convened for any (or all) of the following purposes: examination of the witness; cross-examination of the witness; re-examination of the witness; and
  • Provide for any other matter that the court thinks fit.

    [s 12AB(b)]

There many more procedural laws around what can and can not be done at a pre-trial special hearing and legal advice should be sought.

    Evidence  :  Last Revised: Thu Jun 16th 2016
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.