FACULTY OF LAW LAWS5013 EVIDENCE

Transcription

1 R. M.!! 1 FACULTY OF LAW LAWS5013 EVIDENCE Tpics: Intrductin Admissibility f evidence - Admissins Prf - Part 1 Admissibility f evidence - Credibility Adducing Evidence - Witnesses & Real evidence Admissibility f evidence - Opinin Admissibility f evidence - Relevance Admissibility f evidence - Character f the accused Admissibility f evidence - Discretinary Exclusin & Limits n use Admissibility f evidence - Tendency & Cincidence Admissibility f evidence - Hearsay Prf - Part 2

2 R. M.! (1) Table f Cntents! 2 Table f Cntents (1) INTRODUCTION (1.1) THE TRIAL PROCESS...! 6 (a) The Law f Evidence!... 6 (b) The Pwer f the Curt!... 6 (1.2) THE EVIDENCE ACTS...! 6 (1.3) RELATIONSHIP BETWEEN THE EVIDENCE ACTS, COMMON LAW & OTHER STATUTES!... 6 (1.4) OBJECTIONS & WAIVER...! 6 (a) Objectins!... 6 (b) Waiver - dispensing with the Rules f Evidence!... 6 (1.5) VOIR DIRE ( TRIAL WITHIN A TRIAL )!... 7 (2) PROOF PART 1 (2.1) BURDEN OF PROOF!... 8 (a) Legal/persuasive burden!... 8 (i) Civil Prceedings!... 8 (ii) Criminal Prceedings!... 8 (b) Evidentiary Burden!... 9 Defences!... 9 (2.2) STANDARD OF PROOF...! 10 (a) Civil Prceedings! (b) Criminal Prceedings! (i) Circumstantial Evidence! (c) Admissibility f Evidence! (2.3) PRIMA FACIE CASE...! 14 (a) N case t answer! (3) ADDUCING EVIDENCE - WITNESSES & REAL EVIDENCE (PART 2.1) (3.1) CALLING A WITNESS...! 15 (a) The Pwer f the Curt! (b) Wh calls a witness?! (i) Judge! (ii) Prsecutin! (3.2) COMPETENCE & COMPELLABILITY...! 18 (a) Cmpetency! (i) General Rule! (ii) Exceptins t Cmpetency! (iii) Judges & Jurrs nt cmpetent! (iv) Cmpetence f defendant in criminal prceeding! (b) Cmpellability! (i) General rule! (ii) Exceptins t cmpellability! (iii) Judge nt cmpellable t give evidence abut a prceeding withut leave! (iv) Assciated Defendants in criminal prceedings! (v) Cmpellability f spuses in criminal prceedings! (vi) Cmments in frnt f the jury! (3.3) SWORN & UNSWORN EVIDENCE! (3.4) EXAMINATION OF WITNESSES! (a) Examinatin-in-chief! (i) Cmmn law guidelines fr questining witnesses! (ii) Leading questins! (iii) The Curt s rle in questining witnesses! (b) Reviving memry! (i) Reviving memry in curt with use f a dcument! (ii) Evidence given by plice fficers! (iii) Reviving memry ut f curt! (c) Calling fr a dcument! (d) Unfavurable witnesses! (3.5) CROSS-EXAMINATION OF WITNESSES...! 34 (a) Frm f questining!... 34

3 R. M.! (1) Table f Cntents! 3 (i) When is crss-examinatin permissible?! (ii) Manner and frm f crss-examinatin! (b) Crss examinatin n dcuments! (c) The rule in Brwne v Dunn (a rule f prcedural fairness)! (i) Effect f breach! (3.6) RE-EXAMINATION AND RE-OPENING A CASE...! 41 (a) Re-examinatin! (b) Re-pening! (i) Criminal Cases! (ii) Civil Cases! (3.7) REAL EVIDENCE...! 44 (4) ADMISSIBILITY OF EVIDENCE RELEVANCE (PART 3.1) (a) If evidence is nt relevant, it is nt admissible! (i) Is evidence relevant?! (5) ADMISSIBILITY OF EVIDENCE DISCRETIONARY EXCLUSION AND LIMITS ON USE (PART 3.11) (5.1) GENERAL POWER TO EXCLUDE! (5.2) EXCLUSION IN CRIMINAL CASES UNFAIR PREJUDICE! (a) Danger f unfair prejudice! (b) Independent bligatin f trial judge t exclude?! (c) Assessing Prbative value! (i) Divisin f pinin in HC! (ii) NSW psitin! (iii) Victrian psitin! (iv) NSW pst Dupas! (5.3) GENERAL POWER TO LIMIT USE...! 56 (5.4) IMPROPERLY OBTAINED EVIDENCE! (6) ADMISSIBILITY OF EVIDENCE HEARSAY (PART 3.2) (6.1) THE HEARSAY RULE...! 62 (a) The rule! Req 1: There must be a previus representatin...! Req 2:...made by a persn...! Req 3:...adduced t Prve the Existence f a Fact...! Req 4:...intended t assert the existence f a fact.! (b) Exceptin: Evidence admitted fr a nn-hearsay purpse! (c) General Pwer t Limit Use! (6.2) FIRST HAND HEARSAY EXCEPTIONS! (a) Availability and requirements! (i) Maker must be cmpetent! (ii) Evidence must be first hand hearsay.! (iii) Ntice required if evidence given under ss 63(2), 64(2), 65(2),(3),(8)! (iv) Unavailability/availability! (b) First hand hearsay exceptins in civil cases! (i) Maker nt available! (ii) Maker available! (iii) Objectins! (c) First hand hearsay exceptins in criminal cases! (i) Maker nt available! (ii) Maker available! (6.3) OTHER EXCEPTIONS! (a) Cntempraneus statements abut a persn s health! (b) Business recrds! (7)ADMISSIBILITY OF EVIDENCE ADMISSIONS (PART 3.4) (a) Admissins: Limited t first hand hearsay! (i) Definitins! (ii) Silence as admissin! (b) Exclusins! (i) Prf! (ii) Admissins in the Curse f Official Questining (addressing prblem f verballing )! (iii) Exclusin against third parties!... 80

4 R. M.! (1) Table f Cntents! 4 (iv) Exclusin f admissin influenced by vilence (applies t civil & criminal cases)! (v) Exclusin in criminal prceedings if unreliable (i.e. adversely affected)! (c) The Fairness Discretin! (d) Illegally/imprperly btained evidence (see p. 58)! (8) ADMISSIBILITY OF EVIDENCE - CREDIBILITY (PART 3.7) (8.1) CREDIBILITY RULE! (a) Definitins: Distinctin between evidence relevant t credit and evidence relevant t a fact-in-issue! (b) The rule! (8.2) ATTACKING CREDIBILITY OF OTHER SIDE'S WITNESS...! 90 (a) Exceptin: Crss-Examinatin f Witnesses! (b) Exceptin: Crss-Examinatin f the Defendant in criminal trial! (c) Exceptin: Rebutting Denials by Other Evidence! (8.3) ATTACKING CREDIBILITY OF PARTY'S OWN WITNESS...! 93 (8.4) SUPPORTING CREDIBILITY OF PARTY'S OWN WITNESS! (a) Re-establishing credibility! (b) Credibility f Hearsay (credibility f persns wh are nt witnesses)! (c) Expert evidence n credibility: Persns with specialized knwldge! (9) ADMISSIBILITY OF EVIDENCE - OPINION (PART 3.3) (9.1) LAY OPINION...! 98 (a) Rule! (b) Exceptins! (i) Relevant fr anther purpse exceptin! (ii) Lay pinin exceptin! (9.2) EXPERT OPINION! (10) ADMISSIBILITY OF EVIDENCE CHARACTER OF THE ACCUSED (PART 3.8) (a) Evidence abut character f accused persn! (b) Evidence abut character f c-accused! (c) Crss-examinatin f accused/c-accused! (d) Advance rulings! (11) ADMISSIBILITY OF EVIDENCE - TENDENCY AND COINCIDENCE (PART 3.6) (a) Tendency rule! (b) Cincidence rule! (c) Ntice requirements! (d) Further restrictins in criminal trials! (12) PROOF PART 2 (PT. 4.2) (12.1) JUDICIAL NOTICE! (i) Is the subject matter nt reasnably pen t questin...: s144(1)! (ii) Prcedural requirement...:s144(4)! (12.2) INFERENCES FROM ABSENCE OF EVIDENCE! (a) Civil Prceedings: Jnes v Dunkel inference! (b) Criminal Prceedings! (12.3) WARNINGS: POTENTIALLY UNRELIABLE EVIDENCE! (a) Judicial warnings fr Unreliable evidence! (i) Under Evidence Act! (ii) Cmmn law bligatins t warn and give directins...! (b) Children s Evidence! (c) Warnings in respect f delay in cmplaint: credibility f cmplainant! (i) Cmmn law! (ii) Statute - mre balanced directins! (d) Warnings in respect f delay in cmplaint & prsecutin: frensic disadvantage t dft! (i) Cmmn law! (ii) Evidence Act!

5 R. M.! (1) Intrductin! 6 (1) Intrductin (1.1) THE TRIAL PROCESS (a) The Law f Evidence The law f evidence is the rules which gvern the trial prcess. The rules regulate what material a curt may cnsider in determining factual issues and prvide the legal framewrk fr:...hw the evidence is t be presented t the curt (i.e. adduced)....what evidence can be taken int accunt (i.e. admissibility)....hw the tribunal f fact decides the factual issues (i.e. prf). (b) The Pwer f the Curt The unifrm evidence legislatin preserves a number f pwers n curts in relatin t matters f prcedure and evidence. Evidence Act 1995 (NSW) s11: General pwers f a curt The curt has the pwer t cntrl the cnduct f prceedings. Evidence Act 1995 (NSW) s26: Curts cntrl ver questining f witnesses The curt has the pwer t cntrl the questining f witnesses. Unifrm Evidence Legislatin (1.2) THE EVIDENCE ACTS The law f evidence was an unstructured and cmplex cmbinatin f the cmmn law and statute. Hwever, with the enactment f the Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW), the existing statutes dealing with the rules f evidence were abrgated and mst f the cmmn law principles were extinguished. These statutes cver the field and the rules f evidence acrss a number f jurisdictins is nw unifrm. Nn Exhaustive Cde (1.3) RELATIONSHIP BETWEEN THE EVIDENCE ACTS, COMMON LAW & OTHER STATUTES The Evidence Acts are nt an exhaustive cde f the rules f evidence. Evidence Act 1995 (NSW) s8: Operatin f ther acts...the Evidence Act des nt affect the peratin f the prvisins f anther statute. Evidence Act 1995 (NSW) s9: Applicatin f cmmn law and equity...the Evidence Act des nt affect the peratin f the cmmn law r principles f equity. (a) Objectins (1.4) OBJECTIONS & WAIVER It will ften be necessary fr a party t bject befre a curt will ensure strict cmpliance with the prvisins f the unifrm evidence legislatin (i.e. bjectin t the admissin f evidence is required fr the curt t intervene) (see Picken). Criminal Appeal Rules (NSW): Reg 4 The admissin f evidence shall nt be allwed as a grund fr appeal unless bjectin was taken at trial Picken [2007] NSWCCA 319 [Dft was cnvicted f sexual assault. Dft appealed against the cnvictin n mre than a dzen grunds f appeal, including the Trial Judge s cmment S as I say yu lk at the witness verall and say nw n balance, am I satisfied that that witness has given a reliable accunt ; (des nt capture the standard f prf...n balance...satisfied )] Leave t rely n an errr t which n bjectin had been taken at the trial will be granted nly where the appellant can demnstrate that the errr led t a miscarriage f justice.... It appears t be generally accepted that the appellant must at least establish that he r she has lst a real chance (r a chance fairly pen) f being acquitted. (b) Waiver - dispensing with the Rules f Evidence Evidence Act 1995 (NSW) s190(1): Waiver f rule s f evidence The applicatin f the rules f evidence can be dispensed with at the parties cnsent.

6 R. M.! (1) Intrductin! 7 (1.5) VOIR DIRE Preliminary Factual Questins (1.5) VOIR DIRE ( TRIAL WITHIN A TRIAL ) A vir dire will be cnducted when the curt must determine a factual issue surrunding the admissin f evidence and the cmpetence f witnesses. Sectin The vir dire (1) If the determinatin f a questin whether: Evidence Act 1995 (NSW) (a) evidence shuld be admitted (whether in the exercise f a discretin r nt), r (b) evidence can be used against a persn, r (c) a witness is cmpetent r cmpellable, depends n the curt finding that a particular fact exists, the questin whether that fact exists is, fr the purpses f this sectin, a preliminary questin. [I.e.:& A&preliminary&factual& ques6n&will&arise if& the& determina6n&f&whether& evidence& shuld&be& admi>ed&r&a&witness&is&cmpetent& depends&n&the& curt&finding&that&a&par6cular&fact&exists.] (2) If there is a jury, a preliminary questin whether: (a) particular evidence is evidence f an admissin, r evidence t which sectin 138 (Discretin t exclude imprperly r illegally btained evidence) applies, r (b) evidence f an admissin, r evidence t which sectin 138 applies, shuld be admitted, is t be heard and determined in the jury s absence. (3) In the hearing f a preliminary questin abut whether a defendant s admissin shuld be admitted int evidence (whether in the exercise f a discretin r nt) in a criminal prceeding, the issue f the admissin s truth r untruth is t be disregarded unless the issue is intrduced by the defendant. (4) If there is a jury, the jury is nt t be present at a hearing t decide any ther preliminary questin unless the curt s rders. (5) Withut limiting the matters that the curt may take int accunt in deciding whether t make such an rder, it is t take int accunt: (a) whether the evidence t be adduced in the curse f that hearing is likely t be prejudicial t the defendant, and (b) whether the evidence cncerned will be adduced in the curse f the hearing t decide the preliminary questin, and (c) whether the evidence t be adduced in the curse f that hearing wuld be admitted if adduced at anther stage f the hearing (ther than in anther hearing t decide a preliminary questin r, in a criminal prceeding, a hearing in relatin t sentencing). (6) Sectin 128 (10) des nt apply t a hearing t decide a preliminary questin. (7) In the applicatin f Chapter 3 t a hearing t determine a preliminary questin, the facts in issue are taken t include the fact t which the hearing relates. (8) If a jury in a prceeding was nt present at a hearing t determine a preliminary questin, evidence is nt t be adduced in the prceeding f evidence given by a witness at the hearing unless: (a) it is incnsistent with ther evidence given by the witness in the prceeding, r (b) the witness has died.

7 R. M.! (2) Prf Part 1! 8 Types f Evidence There are three types f evidence: (2) Prf Part 1 (1) Testimnial Evidence evidence frm a witness reprting their perceptins r pinin. (2) Dcumentary Evidence the examinatin f a dcument. (3) Views and Experiments bservatins made by the curt by attending a scene r cnducting sme frm f experiment. (2.1) BURDEN OF PROOF The Evidence Act des nt deal with the burden r nus f prf. This is a matter f substantial law. Distinctin between tribunal f fact and tribunal f law Wh is respnsible fr assessing prf? In criminal case: The jury is the tribunal f fact ; judge the tribunal f law. In civil prceedings: The judge is the tribunal f fact, althugh in sme cases (e.g. defamatin cases) there may be a jury. Questins f prf t be determined by tribunal f fact; Questins f admissibility are questins f law - therefre fr the judge t determine (irrespective f what he/she believe) whether a piece f evidence is a legitimate frm f evidence t g befre tribunal f fact. (a) Legal/persuasive burden Plaintiff/Prsecutin bears nus - he wh asserts must prve. In mst cases, the persn wh has the legal burden will als have the evidential burden. (i) Civil Prceedings In civil prceedings, the plaintiff will bear the nus f prf. Hwever, there are exceptins (e.g. the defendant will be required t prve a claim f cntributry negligence). Strng v Wlwrth s Ltd [2012] HCA 5 (per Heydn J) Legal burden... T speak f a legal (i.e. persuasive) burden is t speak f a burden f satisfying the trier f fact n the balance f prbabilities when all the evidence has been received. (ii) Criminal Prceedings In criminal prceedings, the prsecutin will bear the nus f prf (i.e. the duty f the crwn t persuade the trier f fact by the end f the case f the truth f certain prpsitins): Prve all elements f a crime; Rebut available defences. Hwever, there are exceptins (e.g. defence f insanity). Prsecutin [e.g.] Criminal Cde Act 1995 (Cth); Schedule s 13.1: Legal burden f prf - prsecutin (1) The prsecutin bears a legal burden f prving every element f an ffence relevant t the guilt f the persn charged. (2) The prsecutin als bears a legal burden f disprving any matter in relatin t which the defendant has discharged an evidential burden f prf impsed n the defendant. Accused may, in sme cases have legal burden... E.g. Defence f insanity: The party raising the issue f insanity bears the legal burden f prving insanity n the balance f prbabilities: Prter Brayish v The Queen (2011) 243 CLR where...a statute creating an ffence prvides fr a defence and impses the legal burden f establishing that defence n the accused, then the accused als bears the evidential burden. Fr that evidential burden t be met there must be evidence upn which the trial judge can prperly direct the jury that the defense is pen as a matter f law... ( ) BURDEN OF PROOF & STANDARD OF PROOF [e.g.] Criminal Cde Act 1995 (Cth); Schedule s 13.4: Legal burden f prf - defence A burden f prf that a law impses n the defendant is a legal burden if and nly if the law expressly...(a) specifies that the burden f prf in relatin t the matter in questin is a legal burden; r...(b) requires the defendant t prve the matter; r...(c) creates a presumptin that the matter exists unless the cntrary is prved.

8 R. M.! (2) Prf Part 1! 9 ( ) BURDEN OF PROOF & STANDARD OF PROOF (b) Evidentiary Burden The evidentiary burden is a burden t adduce sme evidence in rder t advance the issue (standard is reasnable pssibility/balance f prbabilities). If this burden is satisfied (e.g. self-defence), the legal burden returns t the ppsing party. One party s duty f prducing sufficient evidence fr a tribunal t call upn the ther party t answer - the bligatin t shw that there is sufficient evidence t raise an issue as t the existence r nn-existence f a fact in issue... Strng v Wlwrth s Ltd [2012] HCA 5 (per Heydn J) Evidential burden...can be used in at least three senses... Defences (i)...the duty f ne party (usually the party bearing the legal (i.e. persuasive) burden, wh in mst cases will be the ptf) t call sufficient evidence t raise an issue as t the existence r nnexistence f a fact in cntrversy. (ii)...circumstances in which a ptf calls evidence sufficiently weighty t entitle, but nt cmpel, a reasnable trier f fact t find in the ptf s favur. There is then said t be an evidential burden in the sense f a prvisinal r tactical burden n the dft: if the dft fails t call any r any weighty evidence, it will run a risk f lsing n the issue - that is, a risk that at the end f the trial the trier f fact will draw inferences sufficiently strng t enable the ptf t satisfy the legal (i.e. persuasive ) standard f prf: see Apll Shwer Screens. (iii)...where a ptf, in discharging the evidential burden in the first sense, calls evidence s strng that a reasnable trier f fact wuld be bund t decide the issue in the ptf s favur if the dft calls n evidence. It is smetimes said that an evidential burden rests n the dft which, if nt discharged, will cause the dft t lse and which, if discharged s as t cause the trier f fact either t reject the ptf s evidence r t be undecided, will result in the legal (i.e. persuasive) burden n the ptf nt being satisfied. Tw ways in which a case can be run: Negative ne f the elements f the cause f actin r the crime (des nt invlve any burden n the dft) Psitive defence - (e.g. self defence; prvcatin r cntributry negligence in civil case) - requires dft t bring sme frm f evidence. Negative defence - ptf prving a negative will impse tactical evidential burden n defence... Braysich v The Queen (2011) 243 CLR 434 Negative defences... defences in respect f which the accused bears n evidential burden because the negativing f such defences is an integral part f the prsecutin s psitive case, n which it bears the legal burden... Apll Shwer Screens Pty Ltd v Building and Cnstructin Industry Lng Service Payments Crpratin (1985) 1 NSWLR 561 The plaintiff r prsecutr may assume assume the legal burden f prving a negative... Psitive defence...where a plaintiff carries the nus f prving a negative prpsitin and where the defendant has the greater means t prduce evidence which cntradicts that negative prpsitin, prvided that the plaintiff establishes sufficient evidence frm which the negative prpsitin may be inferred, such evidence being mre than a scintilla, the defendant carries an evidential burden t advance in evidence any particular matters with which (if relevant) the plaintiff wuld have t deal in the discharge f the plaintiff's verall burden f prf. [Building and Cnstructin administered a statutry scheme fr leave prvisins fr temprary wrkers in the building and cnstructin industry. There was cncern that Apll was in breach f the scheme. Apll sught a declaratin that its wrkers wh installed prefabricated shwer screens, wardrbe drs and shelving were nt within the statutry definitin f wrkers within the industry, which wuld mean there was n breach. In effect, the ptf had an nus t prve a negative prpsitin (that the class f wrk was nt usually perfrmed by a carpenter] Criminal prceedings... E.g. Self defence: Accused must raise self-defence in evidence (i.e. discharge evidential burden). The nus is then n the prsecutin t disprve self-defence beynd a reasnable dubt (i.e. legal burden): s419 Crimes Act (NSW)

9 R. M.! (2) Prf Part 1! 10 E.g. Prvcatin: Accused has an evidentiary nus f raising the issue f prvcatin n the material befre the jury: Jhnsn v R. The prsecutin then bears the legal burden f negativing prvcatin beynd a reasnable dubt. E.g. Duress: Accused bears the evidential burden in relatin t raising duress, while the prsecutin has the legal burden f establishing that the accused did nt act under duress (i.e. negativing the defence beynd all reasnable dubt). [e.g.] Criminal Cde Act 1995 (Cth); Schedule s 13.3: Evidential burden f prf - defence (1)...a burden f prf that a law impses n a defendant is an evidential burden nly. (2) A defendant wh wishes t deny criminal respnsibility...bears an evidential burden in relatin t that matter. (4) The defendant n lnger bears the evidential burden in relatin t a matter if evidence sufficient t discharge the burden is adduced by the prsecutin r by the curt. (6) In this Cde: evidential burden, in relatin t a matter, means the burden f adducing r pinting t evidence that suggests a reasnable pssibility that the matter exists r des nt exist. (2.2) STANDARD OF PROOF Evidence Act 1995 (NSW) Dictinary... "civil prceeding" means a prceeding ther than a criminal prceeding. "criminal prceeding" means a prsecutin fr an ffence and includes: (a) (b) (a) Civil Prceedings a prceeding fr the cmmittal f a persn fr trial r sentence fr an ffence, and a prceeding relating t bail, but des nt include a prsecutin fr an ffence that is a prescribed taxatin ffence... "case" f a party means the facts in issue in respect f which the party bears the legal burden f prf. Sectin Civil prceedings: standard f prf (1) In a civil prceeding, the curt must find the case f a party prved if it is satisfied that the case has been prved n the balance f prbabilities. (2) Withut limiting the matters that the curt may take int accunt in deciding whether it is s satisfied, it is t take int accunt: (a) the nature f the cause f actin r defence, and (b) the nature f the subject-matter f the prceeding, and (c) the gravity f the matters alleged [NB:& Withut&limi6ng... &H&nt&an&exclusive&list:&see&p.908&f&Odgers] Briginshaw v Briginshaw (1938) 60 CLR 336 The Briginshaw test (Dixn J) - curt must bear in mind the allegatin that the ptf is attempting t prve... Except upn criminal issues t be prved by the prsecutin, it is enugh that the affirmative f an allegatin is made ut t the reasnable satisfactin f the tribunal. But reasnable satisfactin is nt a state f mind that is attained r established independently f the nature and cnsequence f the fact r facts t be prved. Whether the issue has been prved t the reasnable satisfactin f the tribunal will depend n cnsideratins f... the seriusness f the allegatin, Neat Hldings v Karajan Hldings (1992) 110 ALR 449 Must have regard t the allegatin... ( ) BURDEN OF PROOF & STANDARD OF PROOF the inherent unlikelihd f the ccurrence f the ffence ; and the gravity f the cnsequences if the defendant shuld nt succeed. The strength f evidence necessary t establish a fact n the balance f prbabilities may vary accrding t the nature f the ffence clear r strict prf is necessary where s serius a matter as fraud is t be fund. Hwever, statements t that effect shuld nt be understd as directed t the standard f prf it shuld reflect a cnventinal perceptin that peple d nt rdinarily engage in fraudulent r criminal cnduct. The judicial apprach shuld nt lightly make a finding that n the balance f prbabilities a party t civil litigatin has been guilty f such cnduct.

10 R. M.! (2) Prf Part 1! 11 *Qantas Airways Ltd v Gama (2008) 167 FCR 537 [FC - highly persuasive, nt binding in NSW] The crrect apprach...must have regard t the allegatin The crrect apprach t the standard f prf in a civil prceeding...is that fr which s140 f the Evidence Act prvides. It is an apprach which recgnises...that the strength f the evidence necessary t establish a fact in issue n the balance f prbabilities will vary accrding t the nature f what is sught t be prved, and...the circumstances in which it is sught t be prved (Bransn J; French & Jacbsen JJ agreeing). A curt is...free t take int accunt any relevant matter but it is required t take int accunt the three matters specifically mentined in s140(2) f the Evidence Act. On the degree f satisfactin... The degree f satisfactin that is required in determining that that standard has been discharged may vary accrding t the seriusness f the allegatins f miscnduct that are made...(french & Jacbsen JJ) On the Briginshaw test... The s-called Briginshaw test des nt create any third standard f prf between the civil and the criminal. The standard f prf remains the same, that is prf n the balance f prbabilities (French & Jacbsen JJ) *Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 [per Gleesn J] Applicatin f s140(2) The matters in s 140(2) f the Evidence Act are a nn-exhaustive list f matters that must be taken int accunt in applying the standard f prf n the balance f prbabilities in civil prceedings, and its applicatin is nt limited t allegatins f fraudulent r criminal cnduct. Recnciling Briginshaw... S140(2) prvides fr n new principle...it reflects the principles stated in Briginshaw v Briginshaw, that the requirement that there shuld be clear and cgent prf f serius allegatins, des nt change the standard f prf, but merely reflects the perceptin that members f the cmmunity d nt rdinarily engage in serius miscnduct. In the present case... The citatin f Briginshaw v Briginshaw is nt inapprpriate, r an indicatin f errr, in circumstances where reference is immediately made t s140(2) f the Evidence Act. [Invlved a sexual harassment case.] Re W [2004] FamCa 768 On the applicatin f s 140(2)(c) in cntext f sexual abuse f children... ( ) BURDEN OF PROOF & STANDARD OF PROOF The gravity f allegatins f sexual abuse f children mean that, in applying the test in this prvisin, the evidence must be very carefully evaluated and inexact prfs, indefinite testimny, r indirect inferences are insufficient t grund a finding f abuse... [i.e. the& standard& f& prf& remains& the& same& but& the& curt& shuld& nt& be& sa6sfied& that& the& allega6n& has& been& prved& n& the& balance& f& prbabili6es&un6l& it&has&exercised&the&cau6n&apprpriate& t&the&issue&in&the& par6cular&circumstances&by&a& careful& examina6n&f& the&whle&f&the&evidence.]

11 R. M.! (2) Prf Part 1! 12 (2.2 )STANDARD OF PROOF: CRIMINAL PROCEEDINGS (b) Criminal Prceedings Sectin Criminal prceedings: standard f prf (1) In a criminal prceeding, the curt is nt t find the case f the prsecutin prved unless it is satisfied that it has been prved beynd reasnable dubt. (2) In a criminal prceeding, the curt is t find the case f a defendant prved if it is satisfied that the case has been prved n the balance f prbabilities [i.e.&where&there&is&a&psi6ve&defence.] Wlmingn v DPP [1935] AC 462 it is the duty f the prsecutin t prve the prisner s guilt...if, at the end f and n the whle f the case, there is a reasnable dubt, created by the evidence given by either the prsecutin r the prisner...the prsecutin has nt made ut the case and the prisner is entitled t an acquittal. *Green v The Queen (1971) 126 CLR 28 A trial judge shuld nt explain the meaning f the phrase beynd reasnable dubt... N attempt shuld be made t explain the meaning f the phrase beynd reasnable dubt...the expressin must be given its rdinary and natural meaning; it is the subjective view f the tribunal...a reasnable dubt is a dubt which the tribunal f fact entertains in the circumstances... R v Suthammavng; R v Silavng [2003] NSWCCA 312, [33] The test fr beynd reasnable dubt is subjective, in the sense that it is the respective individual pinins as t what level f dubt is reasnable that applies (Spigelman CJ) (i) Circumstantial Evidence The acceptance f direct evidence (e.g. a witness statement) is sufficient t establish the guilt f the accused. The acceptance f circumstantial evidence establishes facts frm which further inferences must be drawn. Where the prsecutin relies whlly n circumstantial evidence then the guilt f the accused must be the nly ratinal cnclusin that can be drawn frm the circumstances. Intermediate facts Strands in a cable...the evidence can cnsist f a number f strands in a cable frm which guilt is sught t be inferred. This means that n single fact is necessary t supprt the ultimate inference r cnclusin...therefre, the facts r circumstances shuld nt be cnsidered in islatin. Rather, the tribunal must cnsider the accumulatin f evidence and draw an inference f guilt frm a cmbinatin f facts (i.e. a number f individually dubtful factual inferences may in cmbinatin prduce a finding beynd reasnable dubt. Nne is indispensable because nne is, r reasnable capable f being regarded as, a lgically necessary link in a chain f sequential reasning twards prf beynd reasnable dubt. Links in a chain...hwever, there will be intermediate facts which cnstitute indispensable links in a chain f reasning and will result in an inference f guilt. These facts must each be prven beynd reasnable dubt befre the ultimate inference can be made. [i.e. if the link is missing because the fact is nt established, the remainder f the prsecutin case is nt capable f prving guilt beynd reasnable dubt: see e.g Wallis v Tasmania] *Shepherd v The Queen (1990) 170 CLR 573 [per Dawsn J] The custmary directin (frm Hdges) Where a case invlves circumstantial evidence, it may be necessary t direct the jury that...guilt shuld nt nly be a ratinal cnclusin but als the nly ratinal (r reasnable) cnclusin that can be drawn frm the circumstances [2]...[i.e. the jury must find the accused nt guilty if there is an inference cnsistent with inncence reasnably pen n the evidence...] Circumstantial evidence & Direct evidence Circumstantial evidence is evidence f a basic fact r facts frm which the jury is asked t infer a further fact r facts. Direct (r testimnial) evidence is the evidence f a persn wh witnessed the event sught t be prved. Directins as t intermediate facts... Links in a chain...if it is apprpriate t identify an intermediate fact as an indispensable step in the reasning prcess twards an inference f guilt, it may well be apprpriate t tell the jury that that fact must be fund beynd reasnable dubt befre the ultimate inference can be drawn... Strands in a cable...where...the evidence cnsists f strands in a cable rather than links in a chain, it will nt be apprpriate t give such a warning [that each strand must be fund

12 R. M.! (2) Prf Part 1! 13 (2.2 )STANDARD OF PROOF: CRIMINAL PROCEEDINGS beynd reasnable dubt]...the prbative frce f a mass f evidence may be cumulative, making it pintless t cnsider the degree f prbability f each item f evidence separately... Nt all evidence relied upn need be prved beynd reasnable dubt......it is nt necessary that every fact - every piece f evidence - relied upn t prve an element by inference must itself be prved beynd reasnable dubt...the essential ingredients f each element f the crime must be prved beynd reasnable dubt... In the present case... The HC rejected the ntin in Chamberlain and held that in a case resting upn circumstantial evidence, it is nt crrect that the jury may nly prperly draw an inference f guilt upn facts - individual items f evidence - prved beynd reasnable dubt. Hwever, if it is necessary fr the jury t reach a cnclusin f fact as an indispensable intermediate step in the reasning prcess twards an inference f guilt, that cnclusin must be established beynd reasnable dubt. Whether there is a need fr a trial judge t identify such a cnclusin and direct the jury as t that standard f prf will depend n the circumstances f the case. [Herin imprtatin case. Prsecutin relied n circumstantial evidence including verheard cnversatin, accmplices evidence and bank accunt details. Trial judge did nt direct the jury that they had t be cnvinced that each fact upn which their inference f guilt was based was prved beynd reasnable dubt.] R v Hillier (2007) 228 CLR 618 The reasnable inference must be drawn frm all f the circumstantial evidence as a whle; the tribunal must nt cnsider each fact in islatin. Murder case, husband accused f killing wife. Evidence = mtive; pprtunity; DNA n pjs. Anther man s DNA als fund. Jury cnvicted and ACT SC verturned. HC: appeal allwed, ACTSC dec quashed] (c) Admissibility f Evidence Sectin Admissibility f evidence: standard f prf (1) Except as therwise prvided by this Act, in any prceeding the curt is t find that the facts necessary fr deciding: (a) a questin whether evidence shuld be admitted r nt admitted, whether in the exercise f a discretin r nt, r (b) any ther questin arising under this Act, have been prved if it is satisfied that they have been prved n the balance f prbabilities. [I.e.&the&admissin&f&evidence&must&be&prven&n&the&balance&f&prbabili6es] (2) In determining whether it is s satisfied, the matters that the curt must take int accunt include: (a) the imprtance f the evidence in the prceeding, and (b) the gravity f the matters alleged in relatin t the questin. [i.e.&the&curt&must&take&int&accunt&(1)&the&imprtance&f&the&evidence&in&the&prceedings&and&(2)&the&gravity&f&the&ma>ers&alleged&h&these&tw&ma>ers& are&cmpulsry&in&every&circumstance]

13 R. M.! (2) Prf Part 1! 14 (2.3) PRIMA FACIE CASE (2.3) PRIMA FACIE CASE (a) N case t answer At the clse f a party s case the defendant can submit an applicatin that there is n case t answer (i.e. a prima facie case has nt been established). Test fr a prima facie case (i.e. whether the dft has a case t answer): The questin fr the judge is whether the evidence taken at its highest is capable f prving the case: Dney v The Queen. May v O Sullivan (1955) 92 CLR 654 When at the clse f the case fr the prsecutin, a submissin is made that there is n case t answer......the questin t be decided is nt whether n the evidence as it stands the dft ught t be cnvicted, but whether n the evidence as it stands he culd lawfully be cnvicted...this is a questin f law There is n shifting f the burden f prf... In criminal cases, when the prsecutin has made ut a prima facie case, the burden f prf des nt shift t the accused with the cnsequence that, if he fails t displace the prima facie case by denial r explanatin, he ught t be cnvicted......the burden f prving guilt beynd reasnable dubt rests n the prsecutin frm first t last. After the prsecutin has adduced evidence sufficient t supprt prf f the issue, the dft may r may nt call evidence. Whether he des r nt, the questin t be decided in the end by the tribunal is whether, n the whle f the evidence befre it, it is satisfied beynd reasnable dubt that the dft is guilty...this is a questin f fact....the tribunal may take int accunt the fact that the defendant has nt given evidence as a cnsideratin making the inference f guilt frm the evidence fr the prsecutin less safe than it might therwise pssibly appear... [May was cnvicted n tw charges related t betting at a htel. If May s evidence had been believed it wuld have established that he was nt present when all but ne f the alleged bets ha been made, and with regard t that ne bet, serius dubt wuld have been cast n the evidence f the prsecutin that the cnvictins wuld nt have been justifiable. The magistrate did nt believe May s evidence and instead accepted withut qualificatin the evidence f the chief prsecutin witness.] Dney v The Queen (1990) 171 CLR 207 On whether a trial judge may direct a jury t return a verdict f nt guilty... If there is evidence even if tenuus, weak r vague which is capable f sustaining a guilty verdict, then a prima face case will have been established...the matter must be left t the jury fr its decisin A verdict f nt guilty may be directed nly if there is a defect in the evidence such that, taken at its highest, it will nt sustain a verdict f guilty. [Dney was cnvicted f imprting cannabis resin. The prsecutin case depended n the evidence f an accmplice, Freeman, whse evidence was flawed, nt nly because it was evidence given by an accmplice, thus requiring warning, but als because he admitted t telling lies at varius stages frm the time he was first interviewed by plice. The trial judge had an unfavurable view f Freeman s veracity. One grund f Dney s appeal was that the trial judge erred in hlding that he had n pwer t direct the jury t enter a verdict f nt guilty n the grund that such a verdict wuld be quashed by an appellate curt n the basis that it wuld be unsafe and unsatisfactry.]

14 R. M.! (3) Adducing evidence - witnesses & real evidence! 15 (3.1) CALLING A WITNESS (a) The Pwer f the Curt Dictinary s7: Witnesses (3) Adducing evidence - witnesses & real evidence (Part 2.1) (3.1) CALLING A WITNESS Evidence Act 1995 (NSW) (1) A reference in this Act t a witness includes a reference t a party giving evidence. (2) A reference in this Act t a witness wh has been called by a party t give evidence includes a reference t the party giving evidence. (3) A reference in this clause t a party includes a defendant in a criminal prceeding. Sectin 11 - General pwers f a curt (1) The pwer f a curt t cntrl the cnduct f a prceeding is nt affected by this Act, except s far as this Act prvides therwise expressly r by necessary intendment. [NB:"The&general&pwers&f&a&curt&may&be&inherent&r&derived&frm&legisla6n.&This&prvisin&des&nt&prvide&any&basis&fr&applying&eviden6ary&rules& which&are&incnsistent&with&ther&prvisins&f&the&act:&lane%v%jurd%(n%2)%1995)%40%nswlr% (2) In particular, the pwers f a curt with respect t abuse f prcess in a prceeding are nt affected. Sectin 26 - Curt s cntrl ver questining f witnesses The curt may make such rders as it cnsiders just in relatin t: (a) the way in which witnesses are t be questined, and (b) the prductin and use f dcuments and things in cnnectin with the questining f witnesses, and (c) the rder in which parties may questin a witness, and (d) the presence and behaviur f any persn in cnnectin with the questining f witnesses. [CRITICAL&COMMENT:&Althugh&it&has&been&held&that&the& wide&pwers &given&by&this&prvisin&t&a&curt&include&the&pwer&t&call&a&witness:&milan% Investments%Pty%Ltd%v%Grup%Develpers%Pty%Ltd%(unreprted),%this&is&a&very&brad&prvisin&f&the&prvisin.&The&general&cnsensus&is&that&s26&cnfers&n& pwer&n&the&curt&t&call&a&witness...and&that&that&pwer&derives&frm&the&cmmn&law.] (b) Wh calls a witness? In the adversarial system, the parties are left t decide which witnesses will be called. Hwever, the judge r prsecutin may be required t call a witness where the failure t d s will result in a miscarriage f justice. (i) Judge Civil Cases Clark Equipment Credit f Australia Ltd v Cm Factrs Pty Ltd (1988) 14 NSWLR 552 A trial judge in civil prceedings may nt call r examine a witness at his wn instigatin......except by cnsent f the parties r in the absence f bjectin. Criminal Cases The Queen v Apstilides (1984) 154 CLR 563 A judge in a criminal case...can call witnesses in the mst exceptinal circumstances. [Cncerned a prsecutr s failure t call tw witnesses wh were present with the cmplainant immediately befre the alleged sexual assaults. The trial judge als did nt call the tw witnesses. The defence called the tw witnesses and the prsecutr crss-examined the witnesses t adduce evidence f prir cnvictin frm ne f the tw witnesses. Apstilides appealed n the failure f the prsecutr t call the witnesses.] R v Kneebne (1999) 47 NSWLR 450 The trial judge shuld nt himself call a persn t give evidence save in the mst exceptinal circumstances. R v Damic [1982] 2 NSWLR 750 The judge called a witness where the accused was unrepresented. The trial judge n his wn mtin called psychiatric evidence which raised the defence f mental illness t a charge f murder.