1. BASIC CONCEPTS INTRODUCTION BASIC CONCEPTS MATERIAL FACTS. How to prove material facts in issue (Evidence " Material facts in issue)

Transcription

1 (1) Basic Cncepts Nature f evidence 1. BASIC CONCEPTS 1 INTRODUCTION - The law f evidence: Regulates the prcess fr prving material facts; (Tgether with adversary system) Sets up a prcedure by which evidence is presented; Determines what evidence a curt is entitled t cnsider in determining whether material facts have been prved! Prvides rules that in sme situatins relevant evidence cannt be received, r nt received fr a particular purpse (eg evidential rules f admissibility). BASIC CONCEPTS MATERIAL FACTS - Material facts = the facts which, if prved, will justify legal claim/defence being put frward by a party " The elements f the CA/ffence/defence! Material facts are defined by the substantive law " determine the material facts by examining the legal basis f the claim/defence. - In Issue " Material facts are in issue when disputed by the parties. In civil cases: pleadings, interrgatries & ntices t admit perate t narrw & define the material facts in issue. In criminal cases: a plea f nt guilty theretically puts all material facts in issue, but "! D may tactically limit what is in issue thrugh his defence stry (in rder t appear credible, eg if D says he was nt at the scene, cannt then als say he did it accidentally)! D may frmally admit facts (s.34 SAEA // s.184 UEA)! P may serve a ntice t admit facts n D (s.285ba CLCA)! If D calls n evidence, n inference f guilt can be drawn frm his silence (he has a right t remain silent) But if the prsecutin case is strng & D des nt testify t smething clearly within D s knwledge, the jury can take this int cnsideratin in drawing inferences (Azzpardi) Hw t prve material facts in issue (Evidence " Material facts in issue) - Material facts in issue are prved by the curt receiving & cnsidering evidence tendered by a party " All relevant evidence can be tendered (CL // s.56 UEA) Evidence that can be received by the curt - Only RELEVANT AND ADMISSIBLE evidence can be received by the curt fr determining whether the material facts in issue are prved r nt. Relevance & admissibility are determined at trial when cunsel seek t tender the evidence r ask that a jury be directed in respect f the use f evidence in the prcess f prf - Basic rule: Where evidence is relevant, it must at cmmn law be received by the curt & cnsidered by the trier f fact, unless the law steps in t exclude the evidence r limit its use [ie. a rule f admissibility]. (cf s 56 Cth) Nature f evidence - Distinctin based n the way evidence is tendered tendered evidence can take the frm f " 1

2 (1) Basic Cncepts Nature f evidence 2 Testimnial evidence " testimny f witnesses made t the curt abut their bservatins f relevant events. Dcuments " cntaining relevant infrmatin (but usually need a witness t tell why it s relevant)! Testimny in dcuments (eg statements and reprts f witnesses) is generally excluded as hearsay evidence " witnesses have t give evidence rally Real evidence " Things that the trier f fact can directly bserve himself and draw cnclusins abut frm their wn direct bservatins! Eg witness demeanr! But real evidence must be authenticated by a witness (that it is what it s purprted t be & hasn t been tampered with) in rder t make it relevant - Distinctin based n the way evidence prves a fact: Direct evidence = N need fr any inference t be made frm ne fact t the ther! The testimny evidence f an eye-witnesses wh saw the event sught t be prved. Circumstantial evidence = evidence f a basic fact frm which the trier f fact is asked t infer a further fact! The evidence des nt prve the material fact until the curt draws an inference frm the evidence t the fact in issue there are ther pssible explanatins! Difficult t satisfy the burden f prf if the nly evidence is circumstantial (A) RELEVANCE (A NATURAL CONCEPT) - (Relevance describes a relatinship between the evidence & material facts in issue) - EVIDENCE IS RELEVANT WHERE IT TENDS TO PROVE/DISPROVE A MATERIAL FACT IN ISSUE " Gldsmith v Sandilands [2002] HCA 31 per McHugh J It may d this "! Directly r indirectly (eg credibility f an eye-witness);! Alne r in cmbinatin with ther evidence Determining relevance is nt deciding whether material fact is prven by the relevant evidence "! Only decide whether the evidence can be cnsidered as capable f thrwing light n the questin whether the material fact exists! Whether the evidence actually prves the material facts is t be decided later by the trier f fact - s.55 Cth: Evidence is relevant if it culd ratinally affect (directly/indirectly) the prbability f the existence f a material fact in issue. - s.56 Cth: Except as therwise prvided by this Act, relevant evidence is admissible. - Irrelevance f identificatin evidence f D - Smith v R [2001] Testimny frm plice fficers identifying D as the culprit phtgraphed n bank surveillance camera " relevant? Fact in issue = whether D then standing trial is depicted in the security phts. POs gave evidence at trial that they had previus dealings with D & recgnised the man in the phts as D. There was n suggestin that D s appearance changed after the phts were taken. Held " irrelevant under s.55! The fficers had n knwledge beynd that f the jury s t supprt their identificatins the fficers had nthing t add! Material fact in issue was whether D was the persn depicted in the security phts "! The plice witnesses evidence f identity was funded n material n different frm the material available t the jury frm its wn bservatin " 2

3 The plice witnesses were in n better psitin t make a cmparisn between D and the persn in the phts, than the jurrs were " Their evidence culd nt ratinally affect the assessment by the jury f the fact in issue By the time the evidence had cncluded, the jurrs had prbably spent mre time in D s presence than had the fficers Their evidence was irrelevant & shuld nt be received Cf: evidence frm a picture f hw D lked at the time f the ffence wuld be relevant if it hw D nw lks at trial is in issue Cf: R v Gdall Fact in issue was whether D wned a jacket f the kind the ffender was shwn t be wearing in security phts such a jacket had been fund Tw fficers gave evidence they had seen D wearing this jacket befre the rbbery Held " this evidence was relevant t link D t the jacket "! Unlike Smith, it went beynd the bare assertin f the recgnitin f the persn n trial as the persn in the phtgraph Evidence f identity is relevant if! The witness gave evidence that the man in the phts was wearing a jacket they saw D wear previusly;! It is suggested that D s appearance at trial differs significantly frm D s appearance in the pht; r! It is suggested that there is sme distinctive feature revealed by the phts which wuld nt be apparent t the jury (eg. manner f walking) (B) RULES OF ADMISSIBILITY (A LEGAL CONCEPT) - CL // s.56 Cth " Where evidence is relevant it must be received and cnsidered by the trier f fact unless the law steps in t exclude the evidence / limit its use " Rules f admissibility which exclude/limit the use f evidence " the evidence becmes inadmissible fr that purpse Discretinary exclusin - Admissibility is a legal cncept. The law prvides rules fr determining admissibility " Sme rules f admissibility are defined (exclusinary rules) "! Hearsay rule (ut-f-curt statements cannt be tendered in rder t prve facts asserted in the curt, unless the statement is relevant independently f any assertin f fact in it).! Legal prfessinal privilege Sme rules f admissibility are nt defined (discretins t exclude evidence) - There is sme difficulty in distinguishing between q f relevance & q f admissibility (eg Smith). It can make a difference t the burden f prf: If it s a q f relevance, then the party tendering the evidence bears the burden f cnvincing the curt that the evidence shuld be cnsidered. If it s a q f admissibility (discretinary exclusin), then generally the burden is n the ther side t cnvince the curt that the evidence shuld be excluded. - Cth " Relevance is a separate cncept t admissibility (Papaksms) but " Hearsay evidence is nt necessarily relevant under s.55 (Papaksms, Gleesn CJ) 3

4 Smith v The Queen " identificatin evidence irrelevant as plice fficers had n knwledge beynd the jury t supprt their identificatins (C) DISCRETIONS TO EXCLUDE RELEVANT EVIDENCE (1) Sufficient relevance discretin - Where relevant evidence thrws little light n the existence f the material facts, a curt may as a practical matter refuse t receive the evidence (R v Stephensn / ss Cth) Applies in all cases Barely separable frm the cncept f relevance " t many judges, relevance means sufficient relevance "! Althugh relevance is a natural cncept, sufficiency is a legal rule f admissibility - See Smith, abve " insufficient relevance n the facts f that case Cth " distinctin between relevance and sufficient relevance! Relevance defined in s.55(1) Cth! Sufficient relevance in s.136 Cth (2) Fairness discretin (cncerned with risk f errr in the trier s decisin) - Evidence can be excluded if its receptin wuld cause D s trial t be unfair " This nly happens if there is a sufficient risk that the evidence wuld mislead the trier f fact int making a wrng decisin " - Examples f unfairness f a trial " (i) Where evidence MORE PREJUDICIAL THAN PROBATIVE (Christie discretin)! [such that the evidence is likely t mislead the trier f fact t cnvict nt n the basis f the evidence itself]! Eg if D s presence at the crime scene can be prved thrugh revealing his guilt f anther ffence, but there is ther evidence f his presence, a curt may exclude the evidence revealing the ther ffence as t prejudicial the jury might cnvict D n the basis that he is a criminal.! Eg "R v Ames Gruesme phts f the crime scene admitted int evidence Trial judge fund the phts had cnsiderable prbative value " they shuld be tendered Held " judge had a discretin as t whether the phtgraphs were mre prejudicial than prbative n reasn t dubt the discretin was nt exercised prperly The phts were gruesme, but that was t be expected and they did have sme prbative value (as distinct frm an ral descriptin) Hwever, it might be argued that if the phts wuld be f little assistance in the case, they might be excluded as capable f misleading the jury by arusing their sympathies (Christie)! Where evidence is merely unreliable (ie f dubtful prbative value) and this is apparent t the trier, then it cannt be regarded as ptentially misleading " N reasn t exclude the evidence as mre prejudicial than prbative (Rzenes v Beljajev; R v Tugaga) 4

5 Unreliable evidence can be dealt with by " (Rzenes) Careful directins XXN f crwn witnesses by defence Addresses f defence cunsel! Judge cannt withdraw evidence frm jury simply because it is unreliable! Mandatry warning fr accmplice evidence! Rzenes v Beljajev W testified against his accmplices, having agreed t an undertaking with Prsecutin that W s statements wuld nt later be used against him at trial Trial judge made a ruling t exclude W s evidence as it might have been unfair general bad character, existence f mtives t implicate thers, lack f credibility as W was an accmplice f the Ds. P sught declaratry relief Held " appeal upheld " In the circumstances, it was nt easy t think f grunds fr the exercise f the residual discretin (mre prejudicial than prbative) The evidence was unreliable " there is n discretin t exclude evidence that is merely unreliable The trial was nt unfair by reasn f the unreliability f evidence which was prbative " as the circumstances which made the evidence unreliable had been prperly explained t the jury! It is fr the jury t determine reliability! Fairness discretin t exclude unreliable evidence?! R v Tugaga Pr quality f witness ID evidence " D was a pacific islander " W s had agreed D lked like that and identified D in presence f plice Judge did nt withdraw evidence Held " appeal dismissed, shuld withdraw nly n rare ccasins It is always pen t trial judge t withdraw evidence f identificatin frm the jury s cnsideratin when its quality has been demnstrated t be such that its prbative value is utweighed by its prejudicial effect Test " judge may withdraw evidence nly if it is s frail that its prbative value is utweighed by its prejudicial effect, which falls shrt t the pint where it cannt be cured by apprpriate jury directin! s.137 Cth " in criminal cases, a trial judge MUST exclude evidence if its prbative value is utweighted by the danger f unfair prejudice t the defendant. s.137 demands exclusin " effects the nature f the residuary discretin (ii) DENIED PROCEDURAL PROTECTION FOR TESTING RELIABILITY OF EVIDENCE! Eg the pprtunity t test evidence thrugh XXN r ther examinatin! R v Lbban (plice unlawfully destryed samples f cannabis seized by them frm D)! R v Kreig (D was denied the pprtunity t test a bld sample fr its alchl cntent, due t a hspital delay) Cntrast: Plice v Hall (in the absence f any evidence that such a bld test was inaccurate, the pssibility that D might have been able t challenge the evidence if given an early pprtunity t test the bld did nt make it unfair t admit the evidence) Cf: had there been imprpriety in denying D the pprtunity 5

6 (iii) IMPROPRIETY! An unfair trial may be caused where it can be shwn that if investigatrs had fllwed crrect prcedures, the evidence wuld never have been btained (Duke v R, Brennan J) NB: this ntin f fairness is less cncerned with rectitude (lk t public plicy discretin) (3) Public plicy discretin (Bunning v Crss discretin) - The public plicy discretin permits exclusin f evidence " Prduced/btained by illegal/imprper cnduct (R v Ireland; Bunning v Crss); r Evidence in relatin t an ffence prcured by the illegal/imprper cnduct (Ridgeway v R) - Bunning v Crss: In exercising the discretin, the curt must cnsider " The nature & seriusness f the crime; The nature & seriusness f the illegality/imprpriety alleged; The prbative value f the evidence;! in determining whether admitting the evidence wuld [cndne illegal/imprper plice behaviur &] undermine the integrity f the judicial prcess - The evidence r the crime must be caused r prcured by the illegality r imprpriety (Questin f Law Reserved (1 f 1998) R v Lbban; Rbinett v Plice) - The public plicy discretin requires establishing a causal link between " The illegality/imprpriety; & The btaining f the evidence (Questin f Law Reserved; R v Lbban) - Lbban Imprpriety in denying the subsequent testing f evidence that had been legally btained Held " did nt give rise t the public plicy discretin - Cf: R v Mre (wider apprach) - The discretin extends t cver subsequent illegality s clsely related t the evidence that t admit it wuld undermine the integrity f the judicial prcess Endrsed dicta in Plice v Hall - s.138 Cth " evidence illegally r imprperly btained must be excluded unless the party seeking admissin can cnvince the curt therwise " Effectively reverses the nus when the public plicy discretin is invked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verlap between fairness & public plicy discretins - Where evidence is btained as a cnsequence f imprprieties, the fairness and public plicy cnsideratins are in a sense cmbined " - R v Swaffield; Pavic v R " Bunning v Crss (1978) 141 CLR 54. Suthern Equities Crpratin Ltd (in liq) v Bnd [2001] SASC 70, (Lander J). R v Lbban (2000) 77 SASR 24. See R v Mre (2003) 6 VR 430; R v Lbban (2000) 77 SASR 24. 6

7 In the case f illegally/imprperly btained evidence, f whatever kind, then as a matter f public plicy, determine whether a cnvictin based n such evidence wuld be bught at t high a price having regard t cntemprary cmmunity standards This cnfines the fairness discretin t issues f rectitude. - The better view is that nly 2 discretins apply, regardless f whether the evidence is cnfessinal r nt Cf: R v Lbban "! Cnfessinal evidence " the fairness and public plicy discretins are cmbined Cmpared with;! Other evidence btained thrugh imprpriety " exclusin must be cnsidered separately " (i) First, as a matter f fairness (nt limited t issues f rectitude); then (ii) Secnd, as a matter f public plicy Cf: Plice v Hall! Curt did nt disapprve f Lbban " held! In the absence f any real questin abut rectitude r any evidence f imprpriety the unfairness discretin was nt enlivened - CTH " - s.135-8, s.90 - s.90 Cth " cnfessinal evidence may be excluded where it wuld be unfair t D t use it in evidence " Prper apprach is t "! Define fairness in terms f rectitude f decisin (fr s.90) "! Leave the effect f imprpriety in btaining evidence t s The discretins are principally f imprtance in criminal cases, but n reasn why they may nt als be apprpriate in civil cases Discretins t give leave (Other Discretins) - Examples f evidentiary cntexts in which the curt s leave is required: Witness referring t ntes in-curt; Witness being asked leading questins r crss-examined by the party calling him; Accused being crss-examined n prir cnvictins; Witness being re-examined; Witness being recalled; Party re-pening his case. - The granting f leave really just depends n the applicatin f the evidentiary rules in questin but many f these rules are pen-ended, and s leave is regarded as discretinary (in the sense that an appellate curt wn t interfere unless the trial judge acted upn sme errneus basis r failed t take accunt f a relevant cnsideratin). - s.192 Cth prvides that in granting leave, the curt must take int accunt (makes FORMAL prvisins fr granting f leave): The extent t which the decisin might unduly lengthen the trial; The extent t which the decisin might be unfair t a party/witness; The imprtance f the evidence; The nature f the prceeding. - Stanevski v R: Failure t cnsider these matters is a grund fr appeal 7

8 SOURCES OF EVIDENCE LAW - Applicatin f evidence legislatin depends n the curt yu are appearing befre (NOT the jurisdictin that the curt wuld be exercising). - SA COURTS fllw the cmmn law f evidence as mdified by the Evidence Act 1929 (SA). - FEDERAL & ACT COURTS fllw the Evidence Act 1995 (Cth) [Cth] (s.4). The CEA desn t apply in SA curts merely because they are exercising federal jurisdictin nly t Federal curts in s.4 CEA cdifies the cmmn law exclusinary rules in s.56(1): Except as therwise prvided by this Act, all relevant evidence is admissible. - NSW & Tasmanian curts same as CEA CIVIL & CRIMINAL CASES - Rules f evidence apply in bth civil and criminal cases (insfar as they define a prcess f adversarial prf) " - Insfar as evidential rules exclude/cntrl the tender f evidence because f the risks f unreliability, they are f much greater practical cncern in criminal cases. - Special rules in criminal cases " Exclude evidence f D character; Cntrl the receptin f cnfessinal evidence [& evidence btained by plice illegality/imprpriety]; Require warnings t be given t juries in the case f unreliable witnesses JUDGE & JURY ROLES - A jury s rle is t " decide the facts which are legally determinative f the case. - A judge s rle is t " Decide which facts are legally determinative f the case; Decide what evidence cunsel can put befre the jury t prve thse facts; and Direct the jury abut hw that evidence can/cannt be used by them in finding the facts prved - Judge decides disputes abut legal questins fllwing argument f cunsel - Vir dire hearings " Held t determine the facts upn which the admissibility f the evidence depends PROCESS OF PROOF Burden f prf - Generally P bears the burden f prving that the material facts exist t the required standard f prf " bth legal and evidential burden NB: if D pleads insanity, bears bth the legal and evidential, but t the civil standard - At cmmn law: The party tendering evidence has the bligatin t persuade the curt that it is relevant. The ppnent generally has the bligatin t persuade the curt t exclude relevant evidence in exercise f the residuary discretin. - Under Unifrm Acts: ss nly apply where the ppnent can shw the relevance is substantially utweighed by the stipulated cnsideratins. s.137 demands exclusin in criminal cases where the evidence is unfairly prejudicial. 8

9 s.138 excludes evidence shwn t be illegal/imprperly btained, unless the party seeking admissin can cnvince the curt therwise (effectively reversing the nus where the public plicy discretin is invked) Standard f Prf - Criminal " The material facts must be prved beynd reasnable dubt (s.141(1) Cth) - Civil " The material facts must be prved n the balance f prbabilities (s.140(1) Cth) - Civil Standard f Prf Balance f Prbabilities Briginshaw Test factrs t take int accunt when determining if satisfied:! The seriusness f the allegatin made! The inherent unliklihd f an ccurrence f a given descriptin! The gravity f the csequences flwing frm a particular finding - Prf is always fr the curt (jury) t determine Hw evidence prves the material facts in issue - Prf is a prcess f inference frm evidence t material facts. Whether inferences are drawn depends n the knwledge & experience f the persn drawing the inference (eg cmmn sense). Where the evidence is direct, generally the questin f prf turns n whether the witnesses are credible. Where the evidence is circumstantial, the questin f prf turns n what cmpeting hyptheses might explain all the tendered evidence Jury reasning - Links in a chain f evidence // strands in a cable f evidence If a link in the chain is absent, the ultimate material fact will nt be fund - Mathematical theries f prf (eg Bayes Therem) Adams these are t cmplicated fr a jury t understand and may interfere with the decisin making prcess Directins t juries - Shepherd v R: - In directing juries n the standard f prf, it is enugh t say that " - The case as a whle must be prved beynd reasnable dubt. There is n need t analyse its meaning fr it can nly cnfuse (Green v R; R v Puhuja) There is n need t analyse particular inferences & direct the jury t apply the criminal standard t them BUT smetimes the jury might need assistance if cunsel refer t indispensable intermediate facts which lgically require prf BRD if the case as a whle is t be prved (see belw) (Shepherd, Ktzmann) - Shepherd v R: In criminal cases turning n circumstantial evidence, the jury shuld be directed t eliminate all reasnable hyptheses cnsistent with inncence befre finding D guilty f the Crwn hypthesis (in rder t avid miscarriage f justice). [S if D puts up pssible alternative hyptheses, judge must tell jury that they must eliminate thse pssible hyptheses befre finding that the prsecutin case is made ut BRD.] - Shepherd v R: The jury may draw an inference f guilt having regard t the whle f the evidence, whether r nt each individual evidence relied upn is prved BRD " 9

10 S nt every basic fact relied upn t prve an element f the crime by inference must itself be prved BRD. - Shepherd v R; R v Ktzmann: If it is apprpriate (in the circumstances f the case) t identify an indispensable intermediate fact, it may be apprpriate t tell the jury that that fact must be prved beynd reasnable dubt befre the ultimate inference f guilt can be drawn If the jury might nt appreciate this What is an indispensable intermediate fact "! (a) A necessary link in a chain (as ppsed t a strand in a cable) f reasning twards an inference f guilt Eg a particular inferential analysis, which lgically requires an intermediate fact t be inferred BRD if the case as a whle is t be s prved (eg D s vicinity t the crime) " If the jury might nt appreciate this, they might have t be directed accrdingly if a miscarriage f justice is t be avided! (b) A fact that is nt a necessary link in a chain twards an inference f guilt, but: (i) has a strng imprtance in the case (eg in Chamberlain, the fact that the bld in the car was fetal bld); r (ii) is emphasised by cunsel t the jury t be very imprtant (eg Ktzmann). - Adams: Numerical analysis (eg. Bayes Therem) is an inapprpriate methd fr use in jury trials APPEAL - An evidential errr is an errr f law Eg inadmissible evidence received Eg jury inadequately directed abut the use f evidence befre it - s.353 CLCA " Permits appeal where there has been an errr f law; BUT Appeal can be rejected if there has been n substantial miscarriage f justice! Eg appellate curt thinks that cnvictin wuld have been inevitable even if n errr had ccurred - R v Ktzmann: Even if there is n particular errr, an appeal can be allwed if the curt feels that verall there has been a miscarriage f justice. - Denis Adams: Trial judge cncentrated his directins n the Therem that had been presented by the defence, withut indicating the mre cmmnsense and basic ways in which it wuld have been pen t them t weigh up the relative weight f DNA evidenc Held " failure t direct the jury adequately Evidence f the Bayes Therem r any similar statistical methd f analysis f evidence is inapprpriate fr use in jury trials 10

11 (2) Party Presentatin f Evidence Burdens f prf 2. BURDENS OF PROOF, SUBMISSIONS, JUDICIAL NOTICE 11 PARTY PRESENTATION - Evidential principles, rules and legal cnsequences flw frm this: (a) The incidence f the burdens f prf in a particular case (b) If ne party has the burden f carrying frward the evidence in a case, then the ppnent is entitled t have the case terminated if that evidence is nt adduced ( n case t answer ) (c) The curt cannt act n its wn knwledge in deciding whether material facts are made ut! Curts cannt call witnesses! Curts may ask questins t clear up ambiguities! Curts can take judicial ntice f facts! Curts must use their general knwledge and experience in deciding what inferences t draw frm the evidence tendered (A) THE NATURE AND INCIDENCE OF THE BURDENS OF PROOF - There are 2 adversarial burdens " (as stated in Braysich v R [2011] HCA 14 at [33]) EVIDENTIAL BURDEN OF PROOF "! The burden f adducing relevant evidence f a material fact in issue! Must adduce t the curt evidence frm which the curt can find facts yu want t prve PERSUASIVE (LEGAL) BURDEN OF PROOF "! The burden f persuading the curt that the evidence prves the material fact in issue [t the required standard] - The legal cnsequences if the burdens are nt satisfied: Evidential burden f prf! If a party bears an evidential burden, and fails t adduce relevant evidence f the material fact in issue " the ther side can submit a n case t answer in relatin t that fact. Persuasive burden f prf "! If a party bears a persuasive burden, and fails t persuade the curt f the existence f the material fact in issue t the required standard, then the fact is nt prved - The burdens are allcated by the law issue by issue, and wn t necessarily be n the same party n a particular issue. Eg f split burdens " In a causatin issue, D bears an evidentiary burden t adduce evidence t shw that it was P s wn negligence which caused P s lss. Having adduced evidence n this pint, P bears the persuasive burden t shw that n the balance f prbabilities, the lss was caused by the breach f cntract, and NOT caused by his negligence - Tactical burden may lie n a party t adduce cuntering evidence where the case against him is strng & the trier f fact will prbably find against him in the absence f further evidence. There are n legal cnsequences if the tactical burden is nt satisfied D s Right t Silence - D s failure t present evidence within his knwledge which wuld explain the P evidence against him, can be taken int accunt in deciding whether t accept inferences that may independently be drawn frm P s evidence. - Weissensteiner v R P presented circumstantial evidence t infer D s guilt. 11

12 (2) Party Presentatin f Evidence Burdens f prf 12 D chse nt t testify. Trial judge directed the jury that althugh D s guilt cannt be inferred frm his failure t testify, an inference f guilt may be mre safely drawn frm the prven facts when a D elects nt t give evidence f relevant facts which culd be perceived t be within his knwledge. Held " this directin was permissible.! Cannt draw an inference f guilt merely frm silence! Cannt use D s silence at trial as evidence t fill in any gaps in P s case.! Can draw an inference f guilt mre safely frm P s circumstantial evidence if D has nt supprted any hypthesis which is cnsistent with inncence frm facts which the jury perceives t be within D s knwledge - Azzrpardi Can nly draw an inference against D frm D s silence regarding a material fact, if that fact was peculiarly within the knwledge f D (ie. evidence n the material fact culdn t have cme frm anyne else) INCIDENCE OF THE BURDENS OF PROOF CIVIL CASES - Generally: P bears bth burdens in relatin t the material facts essential t establishing the CA; while D bears bth burdens in relatin t the material facts essential t establishing any defences / cunterclaim. - D bears an evidentiary burden in relatin t material facts that negate the existence/ccurrence f the CA (therwise P must negative all unlikely circumstances in advance, which is impssible) (Purkess v Crittenden) - In a particular case burdens may be allcated differently Purkess v Crittenden:! P sued D fr persnal injury.! Persuasive burden was n the P t establish causatin f injuries frm the accident! D wanted t defeat P n the grund that the injuries were pre-existing! Held " In relatin t the issue f pre-existing injury " The evidential burden was n D "! It was up t D t raise evidence f the pssibility that injuries were pre-existing, befre the curt wuld cnsider it! And nce this burden is satisfied " The persuasive burden was n P "! T satisfy the curt that n such pre-existing injury existed CRIMINAL CASES - Wlmingtn v DPP: Generally, the P bears bth the evidential and persuasive burdens in relatin t all the material facts f the crime charged - Exceptins " Defences - D wishing t raise a defence (eg self-defence, prvcatin) bears the evidentiary burden t adduce credible evidence f their reasnable pssibility Once there is this evidence " P bears the persuasive burden f shwing beynd reasnable dubt that the defence des nt arise n the facts 12

13 - (Exceptin) D wishing plead insanity bears bth evidential and persuasive burdens in relatin t issue " D must adduce evidence and persuade the curt f such insanity But standard f prf is the balance f prbabilities Statutry ffences legislative reallcatin f burdens - There is a presumptin that P bears bth burdens in relatin t all the material facts (Wlmingtn v DPP) " Curts shuld be reluctant t interpret legislatin as placing burdens n D Needs clear wrds t displace the Wlmingtn presumptin - If legislatin expresses that a D bears the burden f prving a defence " This has been interpreted as placing a persuasive burden n D! (t shw that the defence applies, althugh nly n the balance f prbabilities) Exceptins / prviss / excuses t ffences - Where legislatin expresses an exceptin / prvis t an ffence " Curts are prepared t place a persuasive burden upn D (the rule in R v Jarvis) Particularly where thse matters within the exceptin / prvis are within D s knwledge (the rule in R v Turner) s.56(2) Summary Prcedure Act " bth burdens in relatin t that exceptin/prvis are n D But can argue " In light f the Wlmingtn principle, Parliament shuld be taken t cast an evidential burden nly upn D unless it expressly states that a persuasive burden shuld be brne. - What is an exceptin / prvis is smething an exceptin/prvis? - Dwling v Bwie (1952) HC D was charged with selling liqur t Ab under Liqur Act. Liqur Act allwed the Prtectr t declare that any Ab is nt an Ab fr the purpses f the Act (an exemptin) P did nt adduce evidence that the Ab was nt exempt under the declaratin. D was cnvicted, & appealed n the basis that " P failed t meet its burden n the issue f exemptin Held "! Pr had access t Gazettes & an fficial list f exempt Abs " P wuld have n difficulty in prving that the Ab was nt exempt, but D wuld " It wuld be unfair t put the burden n D The fact f exemptin is nt an exceptin/prvis " burden is n P t ffer evidence f nn-exemptin " cnvictin quashed [Can argue the ther way: As a matter f plicy t reduce drunk Abs, the burden shuld be n D rather than P.] Hw is an exceptin/prvis determined "! By lking at the frm f the legislatin! By cnsidering all relevant circumstances [including plicy]! It is ultimately a matter f statutry interpretatin - If an element f the ffence is peculiarly within D s knwledge, and D fails t ffer an explanatin f that issue " very little P evidence will satisfy the burden - Dnghue v Terry Mtr Car Act prhibited using any mtr car withut the cnsent f the wner r persn in pssessin. 13

14 D gave n evidence, and was cnvicted. D argued that P had the burden f prving cnsent Held " The issue f withut cnsent is nt an exceptin / prvis / excuse " it is an essential element f the ffence " The burden f prf thus rests n P " P must give evidence that there was n cnsent! But very little evidence will satisfy that burden, because knwledge f the cnsent is a matter peculiarly within D s knwledge "! There was sme evidence f absence f cnsent, and was n evidence t the cntrary " That was sufficient t determine the case (that cnsent had nt been given) PRESUMPTIONS - A CL technique fr allcating burdens f prf - Characterised by reference t the effect they have n the burdens f prf (persuasive / evidential) - Presumptin f inncence " A general rule Effect " casts the burdens f prving material facts f crimes upn P - Presumptin f death (a persuasive presumptin) Arises nly upn prf f a persn s absence fr 7 years frm thse whm ne wuld expect t have heard f his whereabuts " death is presumed at the time f the actin " There is an evidential & persuasive burden n the ppnent t shw that the persn is still alive n the balance f prbabilities - Presumptin that cmmnly used scientific instruments are accurate (evidential presumptin) But " nce there is evidence f an instrument s inaccuracy " The party relying n the instrument s accuracy must persuade the curt that it is accurate. - Presumptins f fact: Cf inferences f fact " When inferences f fact arise, n burden is placed n an ppnent Eg dctrine f res ipsa lquiter gives rise t nly an inference f fact, and places n frmal burden n D (althugh if the inference is strng, a tactical burden may lie n D t adduce cuntering evidence). - Presumptins arising within the ne fact situatin must be carefully applied t determine which party bears the burdens f prf and upn exactly which issues (B) SUBMISSION OF NO CASE TO ANSWER - Where P (plaintiff/prsecutr) FAILS TO SATISFY THE EVIDENTIAL BURDEN " D has an adversarial entitlement t submit n case t answer and have the case dismissed! (NB: effect is a res judicata f the case) - Evidential burden satisfied by adducing evidence capable f supprting the material facts " The weight and sufficiency f the evidence is nt cnsidered at this stage (Tepper v DiFrancesc) thugh it is difficult t altgether put aside sufficiency 14

15 CRIMINAL CASES - (i) Submissin f n case t answer (n case t answer n the law) That n the evidence as it stands D culd nt lawfully be cnvicted because there is n evidence with respect t every element f the ffence charged which, if accepted, wuld prve that element At the clse f P s case, D has an abslute right t submit that there is n case t answer " n the basis that the evidential burden has nt been satisfied! If P fails t satisfy its evidentiary burden f prf in relatin t any material fact essential t establishing the charge " there is n case t answer and " The judge must acquit D (r direct the jury t acquit D)! King CJ in R v Billick and Starke: The evidential burden is satisfied by adducing sme evidence which, taken at its strngest, and drawing all favurable inferences, is capable f persuading a reasnable trier f fact beynd reasnable dubt that the material fact exists. Cnsider practical cnsideratin culd Pr have adduced ther better evidence? Tepper v Di Francesc: The weight, credibility & sufficiency f the evidence is nt cnsidered at this stage. Directin t jury "! If n case t answer " the judge shuld direct the jury as a matter f law that there must be a verdict f nt guilty, and the jury is bund t accept and act n that directin Where a judge sits alne (als the trier f fact) "! Submissin f n case t answer must be determined when made If a judge errneusly rejects the submissin f n case t answer, it is an errr f law & grund fr appeal. Defence put t their electin "! N. The judge must cnsider the n case submissin, even if D des nt elect t call n further evidence (Tepper v Di Francesc) NB: If there is sme evidence which might prve the relevant part f the ffence, make a sufficiency submissin " - (ii) Sufficiency submissin / Prasad submissin (n case t answer n the facts) There is insufficient evidence t justify a cnvictin, ntwithstanding that there is evidence n which D culd lawfully be cnvicted, if the curt cnsiders that the evidence is s lacking in weight and reliability that n reasnable curt culd cnvict n it D may request the judge at any stage (usually at end f P s case) t exercise his discretin t acquit D early (r ask the jury t cnsider it) n the grund that "! (i) The evidence is t weak t persuade a reasnable trier f fact beynd reasnable dubt " there is n pssibility f the evidence persuading the trier; r! (ii) The evidence is s unsatisfactry (lacking in weight & reliability) that it wuld be unsafe t cnvict upn it cannt safely be acted upn (R v Prasad). If P satisfies the evidential burden, there is a case t answer "! D has n right t ask that the jury be directed t acquit n the basis that the case is weak 15