10 Methods of Gathering Evidence

Oral evidence subpoena ad testicandum for trial one

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oral evidence ( subpoena ad testicandum ) for trial. One problem with subpoenas is that it is difficult to get the document or oral evidence in advance of the trial. 71
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Subpoenas R 42.06: Don’t have to attend trial with subpoenaed documents if they are produced to court registry 3 days before date specified in subpoena R 42.04: Can apply to set aside a subpoena if it is an abuse of process or oppressive , or no legitimate forensic purpose . Commissioner for Railways v Small (1938) 38 SR (NSW) 564 it is not legitimate to use a subpoena to obtain what would in effect be discovery of documents from a non-party who is not liable to make discovery. Subpoenaed party should not have to exercise judgement about whether documents throw light on the dispute being litigated. 72
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Subpoenas to Produce before Date of Trial r 42.03(6) court may allow documents to be produced under subpoena before the date of trial Court has inherent power to make a subpoena for documents returnable prior to the commencement of the trial (see Khanna v Lovell [1994] 4 All ER 267) Upon application, court unlikely to give leave if purpose is to bypass the procedures for obtaining discovery from a non party (see earlier ). Need to show justice of the case requires that such an order be made. 73
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Subpoenaed Documents into Evidence National Employers Mutual General Association v Waind [1978] 1 NSWLR 372): First step : witness brings documents to court Second step : judge determines whether and if so what documents parties can inspect; Third step: admission into evidence of document sin whole or in part. This step alone which provides material upon which ultimate decision in the case rests. In these three steps, the stranger and the parties have different rights, and the function of the judge differs 74
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Subpoenas AFP v Magistrates’ Court of Victoria [2011] VSC 3, per J Forrest J at [28] “The following principles apply in determining whether a party is entitled to access documents the subject of a subpoena: (a) it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought; (b) the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced; (c) the applicant for the witness summons must also satisfy the court that it is “on the cards”, or that there is a “reasonable possibility”, that the documents sought under the subpoena “will materially assist the defence”. (d) a “fishing expedition” is not a legitimate forensic purpose and will not be permitted; 75
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Subpoenas AFP v Magistrates’ Court of Victoria [2011] VSC 3, per J Forrest J at [28] (e) the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.
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