3. Evidence

A.  Legislation

Victoria:
Evidence (Miscellaneous Provisions) Act 1958 (Vic) amended by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic).
 
Oaths and Affirmations Act 2018 (Vic) amended by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic).

New South Wales:
​Evidence (Audio and Audio Visual Links) Act 1998 (NSW) amended by:  
Made under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW):  
Tasmania:
Made under the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (Tas):
South Australia:
COVID-19 Emergency Response Act 2020 (SA): ​
Australian Capital Teritory:
Evidence (Miscellaneous Provisions) Act 1991 (ACT) amended by:
B.  Case law

Australian courts have considered the relevance of COVID-19 to matters of evidence in a number of respects, including:
  • the formal requirements for documentary evidence;
  • the adequacy of viva voce evidence given otherwise than at a face-to-face hearing;
  • matters arising from COVID-19 of which courts may take judicial notice; and
  • the implications of COVID-19 for coercive court processes.

i.  Documentary evidence

The Victorian Supreme Court may grant leave for the filing of unsworn affidavits, where social distancing requirements prevent such affidavits being sworn: Smav Nominees Pty Ltd v Bakal Enterprises Pty Ltd [2020] VSC 203, [13], n 9; and may do so, where appropriate, on the basis of an undertaking that particulars of jurat will be provided once available: Bolitho v Banksia Securities Ltd (No 8) [2020] VSC 174, [72], n 32.

Unsworn affidavits may also be permitted to be filed in the Federal Court: see, e.g., Webster v Brewer [2020] FCA 622, [4]-[6].  However, in Australian Securities and Investments Commission v Mayfair Wealth Partners Pty Ltd [2020] FCA 494, that Court cautioned that, although the Court’s Special Measures Information Note, “Special Measures in Response to COVID-19 (SMIN-1)”, permits parties to file unsworn affidavits, leave is still required for a party to use such an affidavit: Australian Securities and Investments Commission v Mayfair Wealth Partners Pty Ltd [2020] FCA 494, [19]-[27]; Federal Court Rules 2011 (Cth), r 29.07.

Unsworn affidavits may also be permitted to be filed, and relied upon, in the NSW Supreme Court (see In the matter of Beverage Freight Services Pty Ltd [2020] NSWSC 509, [40]) and the District Court of Western Australia (see McMahon v Woodward [2020] WADC 49, [2]).

Social distancing requirements may supply a basis for the Fair Work Commission to dispense with formal requirements for the witnessing of statutory declarations: Commercial & General Hire Pty Ltd as trustees for the Mazomenos Family Trust T/A CGH Scaffold [2020] FWCA 1952, n 2; Cater Plus Pty Ltd T/A Bidfood Adelaide [2020] FWCA 1920, [6]; and Autism Association of South Australia T/A Autism SA [2020] FWCA 2307, [7]; Alpine MDF Industries Pty Ltd [2020] FWCA 2678, [3]. See also the Commission’s statement, The Fair Work Commission’s coronavirus (COVID-19) response, [15].
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ii.  Viva voce evidence

The courts have considered the demands of examination-in-chief and cross-examination in the context of virtual hearings.

While oral evidence, including cross-examination, is more difficult in a virtual court environment, and requires adaptations by advocates, witnesses and the court, those difficulties may not impair the trial process to such an extent that it is substandard, unfair or unjust: see, e.g., Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504, [25]; Capic v Ford Motor Company of Australia Limited [2020] FCA 486, [19]-[20]; cf Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2020] FCA 614, [22]. GetSwift was followed in Sheahan & Lock v Chan [2020] SADC 59 at [58]–[61], [67], [70], after referring to Roberts-Smith. There is also a useful discussion in Sheahan, [48]–[56] of pre-COVID-19 decisions about the effect on oral evidence, and cross-examination, of trial by video-link as opposed to in-court. ​

There may be some benefits to witnesses appearing by video-link. For example, it may be easier to assess a witness’s demeanour, because the judge has a closer view of the witness Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504, [33]; Capic v Ford Motor Company of Australia Limited [2020] FCA 486, [19].

But in any event, ordinarily unsatisfactory modifications to the mode of trial, affecting the giving and receiving of evidence, are required by courts’ response to COVID-19, in order to protect the health and safety of the community, the parties, lawyers, judges and court staff, and their families: Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504, [26]. See also Capic v Ford Motor Company of Australia Limited [2020] FCA 486, [25].

In general, courts and tribunals have adapted their evidence-taking processes to the physical distancing required in response to COVID-19. For example:
However, there may be cases where the court considers it would be unfair to conduct a trial by video-link.

In David Quince v Annabelle Quince and Anor [2020] NSWSC 326, the NSW Supreme Court held that it would be unfair to require a matter to proceed by video-link in circumstances where allegations of fraud had been made, in the absence of substantial corroborative or other material ([5], [15]-[20]).

In Motorola Solutions, Inc. v Hytera Communications Corporation Ltd [2020], the Federal Court vacated a trial date because of difficulties in cross-examining witnesses located in China, including the possibility of Chinese law preventing such cross-examination, and questions about the operation of the rule in Browne v Dunn in that context ([2]-[18]; but compare Roach v Malsave Pty Ltd [2020] NSWSC 364, discussed further in the Adjournments (Civil Procedure) section).

In Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2020] FCA 614, the Federal Court vacated the date for a defamation trial, in part, on the basis that the credibility and reliability of certain witnesses would be crucial, and that the allegations the subject of the proceeding were very serious. In those circumstances, the Court accepted that key witnesses should give their evidence in person, in order to allow the parties a fair and proper opportunity to present their respective cases ([22]).  The Court's decision also turned on issues relating to national security information.  In that respect, the Court accepted a submission that Microsoft Teams was not a suitable platform for communicating national security information, within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ([15(2)], [22]).

The Federal Court also refused to permit a witness' evidence to be adduced by video-link in Australian Securities and Investments Commission v Wilson [2020] FCA 873, in circumstances where serious allegations of misconduct had been made and there was an absence of relevant documentary material, such that the testimony of the relevant witness, and that witness' credibility, would be critical in the proceeding: [25]-[39].  The Court also considered that the time difference between the location of the witness and the location of the trial, the effect of which went beyond mere inconvenience, weighed against allowing the witness to give evidence by video-link: [31].  In reaching its decision, the Court weighed these considerations against the importance of resolving regulatory proceedings swiftly and the indefinite delay to the proceeding that would be caused by dismissing the application to proceed by video-link: [32]-[33].  Ultimately, the Court considered that there was a real risk that the trial, if it proceeded with the witness giving evidence by video-link, would not be a fair one: [37]; citing JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38 with approval (discussed further in the Hearings by alternative means section of this text).

iii.  Judicial notice of the circumstances of COVID-19

The Federal Court has indicated that it is prepared to take judicial notice of COVID-19, the response to it, and the difficulties thereby created for lawyers, parties and witnesses in conducting proceedings: Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504, [11]; Reilly v Australia and New Zealand Banking Group Limited [2020] FCA 436, [9]; Kemp v Westpac Banking [2020] FCA 437, [9]. That Court is also prepared to take judicial notice of the spread of COVID-19 globally, that it has been declared a pandemic by the World Health Organisation and that it is directly affecting the United States and Ireland: Australian Information Commission v Facebook Inc [2020] FCA 531, [69].

The NSW Supreme Court has been prepared to take judicial notice of more specific issues relating to COVID-19, including:
The NSW District Court has been prepared to take judicial notice of the general impact of the pandemic on parties to ongoing legal proceedings in that State: Schwerdtfeger v Western NSW Local Health District (No 2) [2020] NSWDC 158, [7].

The Victorian County Court has been prepared to take into account, as a matter of judicial notice, the impending lockdown of goals and consequent restrictions on prison visits: DPP v Iudice [2020] VCC 316, [26]; cf DPP v Smith [2020] VCC 480, in which Judge Tinney said, “I do not accept the suggestion that I can take judicial notice of the restrictions which will appear” (at [51]).

The Family Court has been prepared to take judicial notice of:
  • there was no restriction in Victoria on the safe movement within that State of a child from one house to another: Biondi v Koen [2020] FamCA 201, [15];
  • travel restrictions between France and Australia: Pierson & Romilly [2020] FamCAFC 91, [2]; and
  • health advice prepared by the World Health Organisation and Commonwealth and State governments: Kardos & Harmon [2020] FamCA 328, [33].

iv.  Coercive court processes

​The Victorian Supreme Court has taken into account the requirements of social distancing in determining the appropriate scope of proposed confidentiality orders: Gardiner v Attorney-General [2020] VSC 224. The Court relevantly rejected a form of the order that would have required the plaintiffs and their legal team to work with one copy of a particular document, noting that it would be unworkable, particularly where the plaintiffs were required to stay at home and could not be expected to meet with their lawyers in person in order to read the relevant document and to provide instructions about it: Gardiner v Attorney-General [2020] VSC 224, [87].
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The AAT has indicated that it is not prepared to issue summonses in the circumstances of the pandemic, unless satisfied that the time-frame for return had been discussed with the recipients, and could be met by them, and that the issue of the summonses would be appropriate in light of the broad social changes arising from COVID-19: Clark and Comcare (Compensation) [2020] AATA 864, [27].
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