Chronology of Events [Timeline] ➲ Legal Wizard

What is the iWitnessed App?

The iWitnessed App is a great locally developed [free to download] technology tool to help collect a contemporaneous record of any incident or crime!

Extracted from the App Store Preview Summary Page:

"iWitnessed helps to collect and preserve eyewitness evidence. It has lots of useful features to help witnesses and victims record the details of the event they experienced.

iWitnessed has been designed by Psychological scientists who are experts in eyewitness memory and police interviewing.

iWitnessed uses a guided recall procedure that has been designed to maximise the value of the information recorded while also helping protect your memory of the event."

Why was the iWitnessed App created?

“Why we made iWitnessed, an app to collect evidence” by Helen M. Paterson [April 2018].

Extracted from the article:

"Eyewitness evidence can be critical to investigations and trials.

However, research shows that eyewitness memory can be inaccurate and vulnerable to distortion depending on what happens next – for example, inaccurate information encountered through leading questions, discussion with other witnesses, or journalists.

This is particularly true when there is a long delay between witnessing an event and reporting the details to police. We forget details very rapidly, and the more we forget, the more our memories become prone to inaccuracies.

Anyone with a device

"iWitnessed is designed to be used by anyone within Australia with a smartphone or tablet, and does not require high levels of literacy or language skills.

Users can type details using their keypad, and record spoken notes – standard voice-to-text functions also work in iWitnessed.

Responses do not need to be in English, allowing witnesses to use their preferred language to give the most accurate and detailed account."

Can iWitnessed evidence be used in court?

"Legally speaking, evidence collected using iWitnessed will be treated like contemporaneous notes.

Contemporaneous notes are witness accounts composed during or immediately after a critical event, and in court proceedings they can range from a note scribbled on the back of a napkin to a meticulous description of the event.

According to the Evidence Act 1995 NSW (sections 32 and 34), contemporaneous notes or contemporaneous recordings of events can be used to refresh the memory of a witness to an event. Even if very rudimentary, they can add to the reliability and strength of the evidence being given in court proceedings.

It is also possible that developments in evidence law may enable evidence collected using iWitnessed to become directly admissible. While there is some legislation on the admissibility of this type of evidence in court, this has not kept pace with the rapid development of modern technologies...".

The iWitnessed App is available for free download on both Apple and Android.

Credits:

The iWitnessed App was developed by a local team of eyewitness memory experts [Helen M. Paterson, Celine van Golde (The University of Sydney), Richard Kemp (UNSW Sydney), Nicholas Cowdery (former Director of Public Prosecution in NSW) and NSW police officers].

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Generally speaking, to help ensure you obtain the best possible outcome, it is recommended that as soon as practical you:

1️⃣ Proceed to obtain legal advice;

2️⃣ Instruct your lawyer to inform the other side that you have a claim against them, and attempt to settle the matter; and if this is not successful

3️⃣ Proceed to take steps to enforce your legal rights without any further delay.

Apart from the risk of the lapse of any Statute of Limitations Period, if your claim seeks equitable relief, failure to provide notice to the defendant that you have a claim and intend to enforce it, may open the door to allow the defendant to seek reliance on the equitable defence of laches, or more generally estoppel with the circumstances of the case unfolding in support of these defences the longer the defendant is able to show inaction on your part.

What is the equitable defence of laches?

Laches is a defence only available to a defendant in equity, where a plaintiff's lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, is viewed as conduct which allows the defendant to develop a belief that the plaintiff will not be seeking to make any claim and to continue about their life dealing with their affairs in reliance on this belief. Wikipedia

In Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 278 ALR 291 at para. [635] per McLure P considered:

"Whether the conduct of the plaintiff amounted to an acquiescence or caused the defendant to alter their position in reliance on the plaintiff’s acceptance of their actions”.

Consequently, a defendant may be able to argue the equitable defence of laches on a much shorter time frame than the relevant statutory limitation period.

In Hourigan v Trustees Executors and Agency Co Ltd (1934) 51 CLR 619 per Rich J:

The Court will not “disregard the election of the party not to institute his claim and treat as unimportant the length of time during which he has slept upon his rights and induced the common assumption that he does not possess any”.

In Gillespie & Ors v Gillespie [2013] QCA 99 MARGARET WILSON J (with whom MARGARET McMURDO P & WHITE JA agreed) at para. [79] of her judgment provided a summary of the applicable law regarding the equitable defence of Laches:

"Laches is an equitable doctrine, under which delay can bar a claim to equitable relief."

Deane J (with whom Mason CJ agreed) observed in Orr v Ford that the ultimate test is that enunciated by the Privy Council in Lindsay Petroleum Co v Hurd –

“… whether the plaintiff has, by his inaction and standing by, placed the defendant or a third party in a situation in which it would be inequitable and unreasonable ‘to place him if the remedy were afterwards to be asserted’: see Erlanger v New Sombrero Phosphate Co, and also, per Rich J, Hourigan.”

The learned authors of Meagher, Gummow and Lehane’s Equity Doctrines and Remedies posit that there are two types of laches –

(i)         delay with acquiescence, where prejudice to others need not be shown; and

(ii)        more commonly, delay with prejudice to others.

However, in Fisher v Brooker Lord Neuberger said –

“Although I would not suggest that it is an immutable requirement, some sort of detrimental reliance is usually an essential ingredient of laches, in my opinion. In Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, 239-240, Lord Selborne LC, giving the opinion of the Board, said that laches applied where ‘it would be practically unjust to give a remedy’, and that, in every case where a defence ‘is founded upon mere delay… the validity of that defence must be tried upon principles substantially equitable’.

He went on to state that what had to be considered were ‘the length of the delay and the nature of the acts done during the interval, which might affect either party, and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy’.”

Trying the validity of the defence on equitable principles involves the balancing of equities.  

In Erlanger v New Sombrero Phosphate Co Lord Blackburn said –

“…it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it.

The determination of such a question must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry.”

And in Fysh v Page Dixon CJ, Webb and Kitto JJ said –

“If a plaintiff establishes prima-facie grounds for relief the question whether he is defeated by delay must itself be governed by the kind of considerations upon which the principles of equity proceed.

If the delay means that to grant relief would place the party whose title might otherwise be voidable on equitable grounds in an unreasonable situation, or if, because of change of circumstances, it would give the party claiming relief an unjust advantage or would impose an unfair prejudice on the opposite party, these are matters which may suffice to answer the prima-facie grounds for relief.”

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.