Spigelman CJ (Beazley JA agreeing):
7 Tobias JA sets out the authorities which consider the use of photographs by a trial judge. It is not entirely clear in what circumstances photographs can be used as direct evidence, as distinct from explicating the evidence otherwise given.
8 As Young J said in Beaton v McDivitt (1985) 13 NSWLR 134 at 142-143:
“ … it seems to me that the law is a little unclear as to just what use may be made of photographs tendered at a trial. In a criminal trial, photographs of the victim may be tendered to enable the jury to understand the medical evidence: see, eg, R v Lobendahn (1980) 5 Petty Sessions Review 2484. Even if photographs are tendered in a motor car accident case, it may be that without concession the photographs can only be used by the judge as descriptive of what the witness who tendered them saw, and that the judge cannot himself make deductions from them: see, eg, Schmidt v Schmidt  QWN 3. However, in R v Ames [1964-5] NSWR 1489 at 1491, the Court of Criminal Appeal seems to me to have made a greater use of the photograph than merely to use it to understand the evidence because their Honours said:
‘… the photographs … did have some probative value, as distinct from an oral description of what they depicted … They depict the direction of the flow of blood on to the clothing and establish the presence of blood on the mouth …’
Very often in equity, photographs are tendered from the Bar table without a witness in the box to give complementary oral evidence, and in my view, when this happens, consistently with R v Ames , the judge treats the photographs as evidence and not merely as material to understand the evidence.”
9 Schmidt v Schmidt  QWN 3 was an appeal from the Queensland District Court to the Full Court of the Supreme Court of Queensland. Douglas J, with whom Hart and Lucas JJ agreed, made certain obiter observations on the use of photographs for the purpose of making deductions of fact. His Honour said at 6:
“[The primary judge] based a large part of his judgment on what he saw in [the photographs]. He was not entitled to use them in the way he did. He proceeded to make deductions of fact which on the evidence it was not competent for him to make. The greater part of his deductions made from the photographs can be described as conjectural, and to the extent that he used them as a basis for his findings they must be rejected.”
10 Douglas J (at 5) cites as authority for his findings Wigmore on Evidence (3rd ed, 1940) vol 3 at 174-175 which states:
“… whenever such document is offered as proving a thing to be as therein represented, then it is offered testimonially, and it must be associated with a testifier.
Two consequences plainly follow. On the one hand, the mere picture or map itself cannot be received except as a non-verbal expression of the testimony of some witness competent to speak to the facts represented. On the other hand, it is immaterial whose hand prepared the thing, provided it is presented to the tribunal by a competent witness as a representation of his knowledge.”
11 In the Chadbourn revision of this text – which was published in the year following Schmidt – the author appeared to recognise a broader role for photographs. After setting out the passage from the third edition, quoted above, the learned author added at 219-220:
“This theory which has been aptly dubbed the ‘pictorial testimony theory of photographs’ was advanced in prior editions of this work as the only theoretical basis which could justify the receipt of photographs in evidence. With later advancements in the art of photography, however, and with increasing awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is capable of swearing that he personally perceived what a photograph purports to portray … there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which ‘speaks for itself’.”
12 The author goes on to quote at length an American case in which this issue is discussed. (People v Bowley 59 Cal 2d 855; 382 P 2d 591 (CA, 1963).) Subsequently see State v Pulphus 465 A 2d 153 (RI, 1983) esp 158, where the Court lists numerous American authorities which “have permitted photographs to be used as substantive evidence as well as merely demonstrative evidence”.
167 The use of photographic evidence has been the subject of discussion in this Court. Its admissibility as a visual reproduction is beyond doubt: Reg v Travers (1958) 58 SR (NSW) 85 at 108. However, in Short v Barrett, Court of Appeal, 5 October 1990 (unreported), Meagher JA, with the concurrence of Clarke and Handley JJA, observed that in relying on his own interpretation of photographic evidence, the trial judge had overlooked the “sage advice” of Lord Reid in C Van der Lely NV v Bamfords Ltd  RPC 61 at 71. His Lordship said:
“Lawyers are expected to be experts in the use of the English language, but we are not experts in the reading or interpretation of photographs. The question is what the eye of the man with appropriate engineering skill and experience would see in the photograph, and that appears to me to be a matter for evidence. Where the evidence is contradictory the judge must decide. But the judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photograph in determining which of the explanations given by the witnesses appears to be most worthy of acceptance.”
168 In Stillwell Trucks Pty Ltd v McKay & Ors  NSWCA 292, Campbell AJA, with the agreement of Handley and Beazley JJA, also referred (at -) with approval to this passage from Lord Reid’s speech, observing that although his Lordship was concerned with a patent case concerning a hay rake and the issue was anticipation, the passage gave guidance on a wider basis. Campbell AJA then observed (at ):
“In my view the use of other components in the photograph or series of photographs to identify objects in a photograph is an appropriate procedure. Upon occasion it may be a matter of common sense. In a case involving machinery parts, as here, it would normally require an expert to make the identification.”
169 It should be noted that the use by a trial judge of photographs is nothing new. They can, as the authorities to which I have referred confirm, be descriptive of what a witness says he or she saw, being a representation of the witness’ knowledge and observations. But they should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural: Schmidt v Schmidt  QWN 3 at 6; Beaton v McDivitt (1985) 13 NSWLR 134 at 142.
170 Thus in United States Shipping Board v The Ship St Albans  AC 632 Lord Merrivale, in delivering the advice of the Judicial Committee of the Privy Council, observed (at 642) that the use of photographic evidence must be the subject of “careful delineation” particularly as a means of proof of matters of fact. This is not to say that photographs can have no probative value of themselves even in the absence of an oral description of what is depicted; only that care must be taken to ensure that they are not used as the sole source from which a primary fact is to be inferred where that fact is not revealed on the face of the photographs such as the condition of a structure at a time significantly removed from that when the photographs were taken.
171 In my opinion the photographs in the present case obviously depict the condition of the pit at the time they were taken. Whether or not they indicate the presence of a lip at that time may well be a matter of common sense and common observation of the photographs. But her Honour did not merely use the photographs for the purpose of determining the condition of the pit and its lid at the time of the plaintiff’s accident. Such a use would have been perfectly legitimate. Rather, she sought to interpret them as establishing, apart from the collapsed side of the pit adjoining the grass verge, the condition of the lip or the lack of a lip around parts of the perimeter of the lid of the pit at the time the footpath was constructed some seven or eight years previously. She did so without the assistance of any expert evidence except, perhaps, that of Mr Garofali which did not establish the conclusion for which the plaintiff contended and her Honour accepted. This was impermissible.
172 In my view it required the evidence of an expert to so interpret the relevant photographs. In the absence of any such evidence, it was not open to her Honour to substitute her own view as a lay observer over the evidence of an expert. This being so, the consequence is that there was no evidence capable of supporting her Honour’s finding that the work carried out to the pit at the time the footpath was constructed left the pit without adequate support for its lid.
173 Absent the legitimacy of her Honour’s finding of negligent construction, the conclusion follows that proper inspection of the work by a Council employee on completion may not have revealed any defect in the pit. In my opinion, therefore, the first basis upon which the primary judge found that the Council was in breach of its duty of care should be rejected.
David Cormack – Brisbane Barrister & Mediator