Chapter 4: Proof. The level at which a case must be proven that is, the degree to which the legal burden must be discharged.

Transcription

1 Simn Dicksn 1! Evidence Law Summary General: Chapter 4: Prf Burdens f prf are divided int legal and evidentiary burdens f prf, and the laws applicable are als divided between civil and criminal standards. Legal: The legal burden is the duty cast upn a part t prve its case. This is determined by the elements f either the civil actin r the criminal ffence. General Rule: Prsecutin/Plaintiff bears the legal burden, Hwever in sme cases such as defences the Defendant may bear a legal burden (eg self-defence, cntributry negligence etc) Reversal f burden: In sme criminal cases, the burden can be reversed and placed upn the defendant t disprve certain presumptins eg presumed pssessin ffence within brader ffence f supplying a drug (s29 Drug Misuse and Trafficking Act 1985 NSW) Timing: Assessed at the end f the trial. Evidentiary: The Evidentiary Burden is the duty t put evidence befre a curt in rder t have a particular issue cnsidered. It therefre runs with the legal burden the prsecutin/plaintiff generally bares the burden fr elements f an actin/ffence, while the defendant has the burden fr any defences raised (r where they must rebut a presumptin) Timing: Assessed during the curse f the trial, as each element is argued and evidence is brught frward. N Case Submissins: Defence can argue that based n evidential burden the prsecutin has nt put frward sufficient evidence taken at its highest t prve that the accused culd lawfully be cnvicted. Made at clsing f prsecutin s case Standard f Prf: The level at which a case must be prven that is, the degree t which the legal burden must be discharged. Civil: Intr Statement: Since present issue falls within the ( insert Act ), the civil standard f prf applies. ( insert plaintiff name ) s case must therefre be prved n the balance f prbabilities - s140(1) Evidence Act (ACT) Actual Persuasin f the Curt required - Nt a mathematical standard r mere mechanical cmparisn f prbabilities Briginshaw; Neterczuk v Mrtimre [trial judge used prbabilities t shw that in head n cllisin where bth parties denied fault, bth were statistically at fault, s neither claim succeed. HCA upheld this, saying he had nt been persuaded by either party s case; nevertheless, actual persuasin is challenged by curt in Strng] It is nt sufficient t simply prve that ne case is mre prbable than the ther Jacksn v Lithgw Cuncil Case f a party means the facts in issue fr which the party bears the legal burden Dictinary Applicatin: Has the burden been discharged? Withut limiting matters, the curt may take int accunt (a) The nature f the cause f actin; (b) The nature f the subject-matter f the prceeding; (c) The gravity f the matters alleged -140(2); Briginshaw

2 Simn Dicksn 2! (c) Gravity: Gravity means the gravity f the cnsequences flwing frm a particular finding Briginshaw [case f adultery, where husband sued fr divrce n grunds f adultery] Hwever, the gravity f the matters des nt affect the standard applied. Instead it simply reflects the view that cautin apprpriate t the particular circumstances and issue, and careful examinatin f the whle evidence are required. - Karajan Hldings The strength f the evidence necessary t establish a fact in issue n the balance n prbabilities will vary accrding t the nature f what is sught t be prved. Karajan Examples f high gravity: Fraudulent cnduct - Karajan Criminal acts leading t civil claim Karajan Sexual Abuse K v R (d) Other Factrs: It is a prcess f reasning - nt limited s140(2) matters but als t cmmn law cnsideratins Jnes v Dunkel; Bth v Bswrth [Bth v Bswrth evidence was an utside estimate by plaintiffs abut numbers f flying fxes killed n D s rchard due t fences. D prvided n data n numbers, s P estimated. Federal Curt accepted this evidence n balance and allwed fr cmmn law principles in ding s] Failure t adduce particular evidence, if in the pwer f the party t prduce such evidence where it wuld reasnable have been expected, may permit an adverse inference Jnes v Dunkel Inherent unlikelihd f the ccurrence f a given descriptin Briginshaw Scientific Fact absence f scientific refutatin f that fact can be significant McDnald Prperty disputes clear and cnvincing evidence f the cntents f a lst dcument is necessary Minassian Criminal: Intr statement: Since ( insert defendant s name ) has been charged with a criminal ffence, the prsecutin must prve its case beynd reasnable dubt - s141(1) Defences: ( insert defendant s name ) must prve his/her case n the balance f prbabilities s141(2). Reasnable Dubt = a dubt which the tribunal f fact entertains in the circumstances - Green It is determined by lking at the evidence as a whle - DF v The Queen Judicial Directins: Must direct jury n this standard, but nt elabrate its meaning - Green Circumstantial Evidence: Rule: Where the prsecutin is reliant n circumstantial evidence, guilt can nly be fund where it is the nly ratinal cnclusin drawn frm the circumstances Plmp v The Queen Is the case whlly reliant n circumstantial evidence? Then the judge must direct the jury that guilt can nly be fund where it is the nly ratinal cnclusin t be drawn frm the circumstances Peacck v The King Applicatin: Is it direct, r merely circumstantial evidence? Knight v The Queen Direct evidence is that which if accepted, alne establishes a fact in issue. Circumstantial evidence, if accepted, establishes facts frm which further inferences must be drawn if guilt is t be established (including state f mind inferred frm cnduct)

3 Simn Dicksn 3! Only ratinal cnclusin? This is determined by applying the requisite standard t the relevant circumstantial evidence: Indispensible Link if the link (the circumstantial evidence) is missing because the fact is nt established, the prsecutin cannt prve guilt beynd reasnable dubt. The link must satisfy the requisite standard - Shepherd v The Queen Strands in a Cable A number f individually dubtful factual inferences (based n circumstantial evidence) may, in cmbinatin, prduce a finding f guilt beynd reasnable dubt. The strands, taken as a whle, must satisfy the requisite standard. Shepherd v The Queen Plmp v The Queen Facts: Plmp (D) was cnvicted fr murder. He went swimming with his wife n the gld cast, and he emerged but she did nt. There was little evidence f ful play and he sught help immediately. Prsecutin shwed they had a trubled marriage and the previus day he had intrduced his extra-marital girlfriend t his marital children as yur new mummy, whm he had prmised t marry, and had tld he was a widw. Circumstantial evidence als shwed the surf n that day was very mild. Held: Based n circumstantial evidence, jury inferred that the death was intentinal. Dixn CJ: Fr a jury it wuld put an incredible strain n human experience t find that her death n this day was merely frtuitus r cincidental. Preliminary Questins: The standard f prf fr deciding the admissibility f evidence, and ther preliminary questins arising under the act (b), is n the balance f prbabilities (unless therwise prvided) s142(1) Applicatin: -s142(2) In deciding whether the standard has been satisfied the curt must take int accunt (a) imprtance f the evidence in the prceeding and (b) the gravity f the matters alleged in relatin t the questin. Hwever, these matters shuld nly be taken int accunt t the extent they are relevant R v Vincent [gravity f allegatins in a criminal prceeding nt held relevant t deciding whether a persn s knwledge f an asserted fact was based n what they actually perceived] Examples f Exceptins t s1423 (where therwise prvided ) s88 prf f admissins! reasnably pen s153(1) presumed, unless the cntrary is prved Vir Dire: -s189 Specified preliminary questins are t be heard in the absence f a jury The Queen v Hardy; R v Mffatt Vir dire is ften used in assessing preliminary questins such as cmpetence, reliability f admissins, illegality and imprpriety (s138) etc.

4 Simn Dicksn 4! Judicial Ntice (f matters nt required t be prven) Matters f Law s143 Rule: Prf is nt required abut the prvisins f (a) Cth, State r Territry Law (s143(1)), and the judge may infrm himself r herself f such laws in any way they see fit (s143(2)). Als includes: (b) regulatin r law made under Ordinance, r (c) Prclamatin f GG, r (d) instrument f legislative character (er rule r curt) which is required t be ntified in a gvernment gazette s143(1) cf ss fr freign law; nte s145 re crwn certificates Matters f Cmmn Knwledge s144 Rule: The judge may infrm himself in any way f (s144(2)), and prf is nt required abut, any knwledge that is nt reasnably pen t questin and is either (a) cmmn knwledge in the lcality r generally r (b) capable f verificatin by reference t a dcument f authrity s144 Applicatin: (a) Cmmn Knwledge Substantial media publicity and sufficient public discussin were held t be factrs in deciding that the dangers f asbests was cmmn knwledge in Tasmania - Kent & Wttn Established as cmmn knwledge generally: Nature f the Internet Jnes v Tben Narrwness f the bicycle Aldertn Histric and persisting disadvantage f wmen in the legal prfessin Vic Wmen Lawyers Assc DNA prbabilities Aytugrul Dangerusness f Asbests (knwledge in Tasmanian Lcalities) Kent & Wttn Ppular Lcatins in the lcality eg harbur bridge in Sydney Odgers Age at which children start and finish schl and schl hurs - Sullivan Nt cmmn knwledge: Benefit f siblings fr children KB & TC (b) Authritative Dcuments Cannt reasnably be questined s144(b) Authritative Dcuments: Macquarie Dictinary Applicant S1983 f 2003 Meterlgical Dcument (eg shwing time sun rse, r tides) Maps -Wentwrth District Medical Anatmical Tables (fr terminlgy, nt t make diagnses Nt Authritative: Published research shuld be treated with circumspectin Wheldn v Dinh Cnclusin: Thus, as ( issue ) is a likely cmmn knwledge, the curt (and jury) must take such knwledge int accunt (s144(3)), and ensure that the ther party can make submissins t ensure they are nt unfairly prejudiced (s144(4); Prentice v Cummins; DPP v Carr)

5 Simn Dicksn 5! Facilitatin f Prf Presumptins as t Reliability and Accuracy General Rule: The party ppsing the presumptin must simply pint t evidence sufficient t raise dubt abut the presumptin (regardless f the party itself adduced such evidence) ALRC 26 s146 - Dcuments r things prduced by prcesses, machines and ther devices (eg printers, phtcpiers) s147 As abve, but in the curse f business s148 acts f Justices f the Peace, Lawyers and Ntaries Public s149 Attestatin f dcuments s150 Seals and Signatures s151 Seals f bdies established under State Law s152 Dcuments lder than 20 yrs, frm prper custdy Matters f Official Recrd: s153 Gazettes and ther fficial dcuments s154 - Dcuments published by authrity f Parliament s155 Evidence f Official Recrds s156 Public Dcuments " s157 Public dcuments relating t Curt prcesses! unclear if this includes nly judgments r als reasns fr a judgement (Cvetkvic) " s158 public dcuments frm anther state r territry s159 Official statistics (published by Australian Statistician) r frm Census Pst and Cmmunicatins s160 Pstal Articles ( mail, date f receipt f mail etc) specifies 4 th wrking day after sent by prepaid pst. S161 Electrnic Cmmunicatins S162 Lettergrams and Telegrams Cmmn law Presumptins: - s9 Cmmn law presumptins are als allwed under s9 (r fr Cth prceedings, under s140(2) fr Civil Prceedings. Presumptin f regularity: persns tend t act in cnfrmity with their legal bligatins Lee v Burn [n evidence taxi fitted with seatbelts, s presumptin that it cmplied with legal bligatin t d s] Presumptin f Cntinuance: states f affairs tend t persist ver time R v Nnan [Curt did nt accept presumptin that since D was driving car at 6:50pm he was als the ne driving at 9pm] " c.f. O Leary v The King where Dixn said drinking ne evening, and the presence f a dead bdy in the same lcatin the next mrning were a cnnected series f events ccurred which shuld be cnsidered as ne transactin Presumptin f Accuracy f scientific instruments: clcks and ther measuring devices are presumed accurate unless evidence is adduced t shw therwise R v Rss Magulias; ss Evidence Act (ACT) " NB Other legislatin may verlap/displace this presumptin eg ss55,57, 57B Rad transprt (Safety and Traffic Management) Act gverning traffic light cameras. Jury Miscnduct Experiments Rule: Juries cannt cnduct inspectins r experiments withut curt apprval R v Wd; R v Bilal Skaf, Mhammed Skaf Hwever Judges may rder that views ie experiments r inspectins be held s53

6 Simn Dicksn 6! Adducing Evidence Part 2.1 Witnesses A witness is a party giving evidence, and includes a criminal defendant Dictinary pt.7 cl. 7 General Rule: Unless therwise prvided, every persn is (a) cmpetent and therefre (b) cmpellable t give evidence (s12). Exceptins: 1. Cmpetency/Lack f Capacity: - s13 A persn is nt cmpetent t give evidence abut a fact if, fr any reasn, they (a) d nt have the capacity t understand a questin abut a fact; r (b) d nt have the capacity t give an answer that can be understd t a questin abut the fact, and that incapacity cannt be vercme s13(1) Burden f prf is n party asserting the witness is nt cmpetent, since presumptin remains in favur f cmpetence s13(6) (a) understanding a questin: a yung child wh can speak and understand basic English with strangers wuld be cmpetent R v MacPhersn (b) answering a questin: an answer can be understd even if it des nt answer the questin asked and appears t ramble ff and prvides little relevant infrmatin Sed v The Queeni (UK); cited in ALRC 102 Determining capacity: A curt may infrm itself as it thinks fit, including btaining specialist knwledge, t determine cmpetence s13(8) " Usually in vir dire per s189 " S79(2) specifies experts include thse in child behaviur/abuse Other facts: Witness may still be cmpetent t give evidence abut ther facts s13(2) Overcming incapacity: ss30 & 31 allw fr interpreters r assistance fr deaf, prvided substantial cst r delay is nt incurred (s14). Death r later incmpetence? Evidence already given by a witness des nt becme inadmissible merely because the witness dies r ceases t be cmpetent befre they finish giving evidence s13(7) Can they als give Swrn Evidence? A cmpetent witness cannt give swrn evidence if they d nt have the capacity t understand that, in ding s, an bligatin t give truthful evidence s13(3) Applicatin: Requires questins nt t cmplex, using direct questins, such as d yu knw what the truth is? and d yu knw what a lie is? fllwed by a request t the child t prvide an example f each R v RAG Hwever, they may still give unswrn evidence (s13(4)) if the curt has tld them (a) it is imprtant t tell the truth, (b) they must tell the curt if they d nt knw r cannt remember an answer, and (c) they shuld nly agree with statements they believe are true (s13(5)). Thus, s13(5)(a) des nt require that they appreciate the imprtance f telling the truth must simply be tld it is imprtant - Odgers p67 2. Reduced Capacity: - s14 Rule: If (a) substantial cst r delay wuld be incurred in vercming a witness incapacity, r (b) adequate evidence has, r will, be given by anther persn, ( insert name f witness ) is nt cmpellable s14

7 Simn Dicksn 7! 3. Svereign and MPs: - s15 Svereign, (b) Gvernr-General, (c) Gvernr f State, (d) Administratr f Territry, (e) Freign Head f State are nt cmpellable (s15(1)). MPs are nt cmpellable if it wuld prevent them frm attending either (a) a parliamentary sitting r (b) a cmmittee meeting (s15(2)). Nte s10 preserving Parliamentary privilege 4. Judges and Jurrs: - s16 Rule: A judge r jurr in a prceeding nt cmpetent t given evidence in that prceeding s16(1) Hwever, Jurrs may give evidence in that prceeding abut matters affecting cnduct f the prceeding s16(1) A persn wh is r was a judge in Australian r verseas prceeding is nt cmpellable t give evidence abut that prceeding unless the curt gives leave s16(2) Cnditins fr leave are specified under s Defendants in Criminal Prceedings: - s17 Rule: In a criminal prceeding (s17(1)), an accused is nt cmpetent t give evidence fr the prsecutin (s17(2)), and thus is nt cmpellable under s12(b). Criminal Prceeding: prsecutin fr an ffence, including (a) cmmittal fr trial r sentencing, and (b) prceedings relating t bail. - Dictinary The defendant may still elect t give evidence fr the prsecutin. NB: This renders the defendant unavailable fr the purpses f s65-1 st hand hearsay exceptin. Jint Defendants: A jint defendant is nt cmpellable, unless being tried separately t the ther defendant s17(3). If they are being tried jintly, the curt must satisfy itself that the defendant(s) are aware f the effect f s17(3) (ie that they are nt cmpellable while in the same trial). 6. Dmestic Partners, Parents r Children: - s18 Rule: In a criminal prceeding (s18(1)), a dmestic partner, parent r child f the defendant may bject t being required t give evidence fr the prsecutin (s18(2)). If (a) there is a likelihd that harm might be caused t the persn, r relatinship, and (b) the nature/extent f the harm utweighs the desirability f giving evidence, the persn must nt be required t give evidence (s18(6)). Definitins: Criminal Prceeding: prsecutin fr an ffence, including (a) cmmittal fr trial r sentencing, and (b) prceedings relating t bail. Dictinary Dmestic Partner: Legislatin Ac (ACT)t s169 prvides that it is smene wh lives with the persn in a dmestic partnership (s169(1)). The latter is irrespective f whether they are f the same sex (s169(2)), and cnsiders factr such as length f relatinship, sexual relatinship, financial dependence/interdependence, husehld duties, reputatin/public aspects f partnership. Child/Parent: Includes adptive relatinships Dictinary pt. 2 cl.10; and step-children R v YL Weighing harm against desirability f evidence: Withut limiting the factrs, the curt must take int accunt: (a) Nature and gravity f the ffence D is charged with; (b) Substance, imprtance and weight given t the evidence; (c) Whether any ther evidence n the same matter is available; (d) Nature f the relatinship (e) Whether the persn will be required t disclse matters divulged t them by D in cnfidence In each case the Curt is ultimately required t make a judgment in light f the circumstances revealed by the evidence Making an Objectin:

8 Simn Dicksn 8! Curt s rle: If a persn has a right under s18(1) t bject, the curt must satisfy itself that they were aware f its effect s18(4) Timing: Objectin is t be befre giving evidence r as sn as practicable nce the persn is aware f their right t bject (whichever is later) s18(3) Des an exceptin apply? S18 des nt apply t: - s19 Parts 2-5 f Crimes Act 1900 (ACT) fr children under 16 years Offences frm the Children and Yung Peple Act 2008 Dmestic Vilence Offences under the Dmestic Vilence and prtectin Orders Act 2008 [R v YL child was victim t step-mther s abuse, and bjected t give evidence under s18. Curt cnsidered factrs, but fund his bjectin culd nt be sustained, since s19 applied he was age 7 (age 6 at time f incident).] Cnclusin: If the curt finds ( witness ) is nt cmpellable, the prsecutr may nt cmment n either (a) his/her bjectin, (b) the decisin f the curt, r (c) ( witness ) failure t give evidence. -s18(8)! Cmmenting n a failure t give evidence: Defendant s failure t give evidence: Rule: In a criminal prceeding fr an indictable ffence (s20(1)), a prsecutr must nt cmment n the failure f an accused t give evidence s20(2) Judge r ther party: May cmment, hwever judge may nt suggest the failure was because the defendant is, r believes themselves t be, guilty s20(2) Hwever, in very specific circumstances, where there are facts which are peculiarly within the knwledge f the accused, sme adverse cmment by the judge may be permitted Weissensteiner; Azzpardi C-defendant: may cmment in any way, including t suggest guilt s20(2) [Weissensteiner D was n a bat with 2 victims fr 8 mnths. When bat arrived back n shre they were missing, nly he had knwledge f what happened, but chse nt t give evidence. HCA apprved trial judge s cmment that inferences as t guilt can be mre readily drawn in circumstances where D has unique knwledge and n ther evidence exists. HCA nted that a failure by D t give evidence cannt make up fr deficient in prsecutin s case.] Defendant s Spuse, Child, Parent r De Fact s Failure t Give Evidence: Rule: In a criminal prceeding fr an indictable ffence (s20(1)), a prsecutr must nt cmment n the failure f an accused s spuse/child/parent t give evidence s20(2) Judge r ther party: May cmment (s20(3)), hwever may nt suggest the failure was because (a) the defendant is guilty r (b) the spuse/child/parent believes the defendant t be guilty (s20(4)). C-defendant: may cmment in any way, including t suggest guilt s20(4) hwever the judge may (in additin t cmmenting n the failure himself), als cmment n the c-defendant s cmment (s20(5)) Cmmenting n Prsecutin s Failure t call a Relevant Witness Rule; Cmment can still be made by judge r defendant n failure f prsecutin t call a relevant witness Jnes v Dunkel