Hot on the Trail – Some Aspects of Collecting and Preserving Evidence

A Queens Counsel once remarked to me that cases are 99% about facts.   And he was right.

If you do not have the admissible evidence to prove your case or to rebut the other party’s case, you will not succeed in court.   Your negotiating hand is also significantly weaker.

I have been involved in some cases where the opposing parties have commenced proceedings against my clients, only having to withdraw part way through the trial.  The reason in each case was that they lacked the evidence to prove their cases.   The proceedings were nothing but a waste of time and money for all concerned.   Clearly before one proceeds to issue proceedings, it is important to evaluate if there is sufficient admissable evidence to prove one’s case and rebut any opposing case.   The same applies to any successful defense.

With that in mind, let’s examine some of the issues involved.

Overarching Strategy With Collecting  Evidence

When collecting evidence it is critical to have regard to the issues in dispute.  These may have been identified in the pleadings and initial instructions or may be apparent from an initial consideration of the facts.

However, some matters may not be immediately apparent and therefore further questioning is required in order to ascertain if there are other, as yet unidentified, issues.  If there other grounds that may be relevant to the case that could assist or harm your case or the cases of any opposing parties, those other possible avenues should also be followed up.

Physical Evidence

The preservation of evidence is critical. The problem can manifest itself in different ways, such as:

  • Evidence can be destroyed, wilfully or accidentally;
  • Evidence may be tampered with, wilfully or accidentally;
  • Evidence may be lost;
  • Memories fade over time and therefore recollections of what occurred are lost, less reliable and/or scant.

It needs to be kept in mind is that not all evidence is as permanent as another.

If evidence is not collected when it is available, the simple reality is that it is likely to disappear or may even cease to be admissable in certain situations.   Some of that disappearing evidence may be physical, some not.

So how can evidence disappear?

Obviously, somebody at a fire scene throwing out into the garbage bin a critical electrical part that caused a fire is one example of a scenario.

However, some scenarios may not be so immediately obvious.

For example, imagine a blood sample is taken by a doctor at a hospital. The sample is then removed and sometime later, the person from whom the blood sample was taken is charged with drink driving.   The accused person disputes the blood sample reading and now puts the Police to the proof.

How do you know if the sample taken from the defendant is the same sample that was measured was from him and that it was not tampered with in the meantime?   What needs to be done to prove that?

For that blood sample’s analysis to be admitted into evidence, the prosecution must prove that the sample drawn from the person is precisely the same sample analysed and that nobody tampered with it throughout that time. This is called “Continuity”.

The same issue of continuity can also apply in civil cases and its application is far wider than bodily sample analysis.

Loss adjusters, investigators and lawyers must be aware of such issues because unless correct procedures are followed and the evidence correctly retained, otherwise good cases may collapse.

Oral Evidence

No-one has a perfect memory which never fades.   The best opportunity to collect evidence from a witness is as soon as possible after the relevant event has taken place.

Any witness statement must, insofar as it is possible, be in the words of the witness.   The interviewer must ensure that none of his or her biases or opinions colour the witness statement.

Witnesses are, with few exceptions, only able to give evidence of matters of which they have direct knowledge. Hearsay evidence is generally inadmissible at trial. While information given by an interviewee of matters not directly known may be useful in terms of possible followup of other people or other types of evidence (documents or physical evidence), that indirect information cannot be confused with direct evidence in a witness statement.


I have only canvassed a few issues and I have by no means covered them extensively.  Many other matters need to be taken into account.

It is unrealistic to expect that cases are to be won by brilliant cross-examination.

The key to successfully conducting any litigation lies in thorough preparation and  attention to detail. There is no better time to do that then when the trail is hot – right at the beginning.

To discuss these issue further please contact me.