Evidence Law LAWS5013

Transcription

1 Evidence Law LAWS5013 Table f Cntents (1) INTRODUCTION 4 (A) INTRODUCTION 4 (I) THE ADVERSARIAL SETTING OF EVIDENCE LAW 4 (B) THE TRIAL PROCESS 4 (C) RELATIONSHIP BETWEEN THE EVIDENCE ACTS, THE CL AND OTHER STATUTES 5 (D) TAKING OBJECTIONS 6 (E) DISPENSING WITH THE RULES OF EVIDENCE 6 (F) THE VOIR DIRE (S 189) 7 (2) PROOF PART 1 8 (A) WHAT IS PROOF? 8 (I) DIFFERENT TYPES OF EVIDENCE 8 (B) BURDEN OF PROOF 9 (C) STANDARD OF PROOF 9 (I) TYPES OF EVIDENCE DIRECT VS CIRCUMSTANTIAL 9 VARYING DEGREES OF PROBATIVE VALUE) 9 (D) PROOF RULES 10 (I) CRIMINAL PROOF RULES S (II) CIVIL PROOF RULES S (E) STANDARD OF PROOF RELATING TO ADMISSIBILITY OF EVIDENCE 13 (F) PRELIMINARY QUESTIONS PROOF RULES HEAD ON THE VOIR DIE) S (I) WHAT MUST BE PROVED TO THE REQUISITE STANDARD? 13 (E) EVIDENTIARY BURDEN VS PERSUASIVE BURDEN 13 (F) IS THERE A PRIMA FACIE CASE OR NO CASE TO ANSWER? 14 (3) ADDUCING EVIDENCE WITNESSES AND REAL EVIDENCE 15 (A) CALLING A WITNESS 15 (I) PROSECUTOR S DUTY TO CALL ALL WITNESSES TO UNFOLD THE NARRATIVE 15 (II) DOES THE PROSECUTOR HAVE A DUTY TO CALL BALANCED EXPERT OPINIONS? ARGUABLE POINT 16 (B) COMPETENCE AND COMPELLABILITY 16 (I) COMPETENCE AND COMPELLABILITY PRESUMPTION (S 12), GIVING SWORN EVIDENCE (S 13) 17 (II) COMPETENCE AND COMPELLABILITY DEFENDANTS IN CRIMINAL PROCEEDINGS (S 17) 18 (III) COMPELLABILITY OF SPOUSES AND OTHERS IN CRIMINAL PROCEEDINGS S (IV) SWORN AND UNSWORN EVIDENCE 19 (C) EXAMINATION OF WITNESSES 19 (I) DIRECT EXAMINATION EXAMINATION-IN-CHIEF 20 (II) WHAT IS A LEADING QUESTION? 20 (III) ASKING LEADING QUESTIONS IN DIRECT EXAMINATION THE EXCEPTIONS (S 37) 21 (IV) QUESTIONING OF WITNESSES BY TRIAL JUDGE UNFAIR (ESPOSITO) 22 (D) ORAL EVIDENCE VS WRITTEN STATEMENTS 22 (E) REVIVING MEMORY 23 (I) MUST NOT USE DOCUMENTS TO REFRESH MEMORY IN COURT WITHOUT LEASE S (II) CAN USE DOCUMENTS TO REFRESH MEMORY OUT OF COURT MUST PRODUCED IF REQUESTED S (III) POLICE OFFICERS REFRESHING MEMORY WITH DOCUMENT A SPECIAL EXCEPTION S (F) CALLING FOR A DOCUMENT 25 (G) UNFAVOURABLE WITNESSES 25 (H) CROSS-EXAMINING WITNESSES 26 (I) IMPROPER QUESTIONS 26 (II) USE OF PRIOR INCONSISTENT STATEMENTS 28 (III) COMPOUND QUESTIONS 29 (I) THE RULE IN BROWNE V DUNN (1894) MUST MAKE CONTRADICTION CLEAR 29 1

2 (J) RE-EXAMINATION AND RE-OPENING A CASE 32 (I) RE-OPENING A CASE CHIN; URBAN TRANSPORT AUTHORITY 32 (K) REAL EVIDENCE 33 (4) ADMISSIBILITY OF EVIDENCE RELEVANCE (SS 55, 56 & 57) 37 (A) HOW IS RELEVANCE DEFINED? S (B) PROVISIONAL RELEVANCE S (C) DIFFERENCE B/W RELEVANCE AND PROBATIVE VALUE 38 (5) ADMISSIBILITY DISCRETION TO EXCLUDE, LIMITS AND IMPROPERLY OBTAINED EVIDENCE 40 (A) GENERAL POWER TO EXCLUDE 40 (B) EXCLUSION IN CRIMINAL CASES (PR EVIDENCE ONLY) UNFAIR PREJUDICE S (C) RELEVANCE AND PROBATIVE VALUE? 41 (D) GENERAL POWER TO LIMIT USE 42 (E) WHAT IS UNFAIR PREJUDICE? 42 (F) SS 135, 137 UNFAIR PREJUDICE > PROBATIVE VALUE 43 (G) EXCLUSION IN CRIMINAL CASES UNFAIR PREJUDICE 44 (I) UNFAIR PREJUDICE FROM UNATTRACTIVE OR UNPLEASANT EVIDENCE? DANN 44 (II) UNFAIR PREJUDICE FOR POOR CREDIBILITY? 44 (III) UNFAIR PREJUDICE FOR LACK OF RELIABILITY? SHAMOIL 44 (III) UNFAIR PREJUDICE FROM HAVING TO PUT ON REBUTTAL EVIDENCE? SOOD 45 (H) IMPROPERLY OR ILLEGALLY OBTAINED EVIDENCE S (I) EVIDENCE OF AN ADMISSION TAKEN TO BE OBTAINED IMPROPERLY WHEN SS 138(2), (II) ILLUSTRATION 48 (6) ADMISSIBILITY OF EVIDENCE HEARSAY 49 (A) FIRST QUESTION TO ASK IS IT HEARSAY? 50 (B) FIRST HAND HEARSAY EXCEPTIONS 54 (I) AVAILABILITY AND REQUIREMENTS 55 (II) CIVIL 55 (III) CRIMINAL 57 (C) OTHER EXCEPTIONS 61 (7) ADMISSIBILITY ADMISSION EVIDENCE 63 (A) WHAT AMOUNTS TO AN ADMISSION? 63 (I) SILENCE AS ADMISSION EVIDENCE? YES, BUT NOTE S 89 (NO ADVERSE INFERENCE FROM SILENCE IN RESPONSE TO INVESTIGATING OFFICIAL IN CRIMINAL PROCEEDINGS) 63 (B) ADMISSION EVIDENCE EXCEPTION TO HEARSAY EXCLUSION RULE (S 81) 64 (I) GENERAL EXCLUSIONS TO S 81 EXCEPTION TO THE HEARSAY RULE (SS 82, 83) 64 (C) PROVING ADMISSION EVIDENCE ON THE VOIR DIRE (VERBALLING CONCERNS) 65 (I) RECORDS OF ORAL ADMISSIONS NOT ADMISSIBLE IN CRIMINAL PROCEEDINGS UNLESS SIGNED / INITIALLED (S 86) 65 (II) CRIMINAL PROCEDURE ACT 1986 (NSW) S 281 TAPE RECORDING OR REASONABLE EXCUSE 65 (D) OTHER EXCLUSIONS TO S (I) EXCLUSION (CRIMINAL AND CIVIL) ADMISSIONS INFLUENCED BY VIOLENCE AND OTHER CONDUCT (S 84) 67 (II) EXCLUSION OF (CRIMINAL) ADMISSIONS MADE IN CIRCUMSTANCES WHERE IT MAY BE UNRELIABLE (S 85) 68 (E) GENERAL EXCLUSIONS OF ADMISSION EVIDENCE IMPROPERLY / ILLEGALLY OBTAINED EVIDENCE (SS 138, 139) 70 (F) FAIRNESS DISCRETION TO EXCLUDE (CRIMINAL) ADMISSION EVIDENCE THE FINAL SAFETY NET (S 90) 70 (I) COVERTLY RECORDED CONVERSATIONS (LIKELY TO BE UNFAIR) SWAFFIELD, PAVIC, EM 71 ADMISSIBILITY OF EVIDENCE CREDIBILITY 74 (A) WHAT IS CREDIBILITY EVIDENCE? 74 (B) THE CREDIBILITY EVIDENCE EXCLUSIONARY RULE S (C) EXCEPTIONS 76 (I) GENERAL EVIDENCE RELEVANT AND ADMISSIBLE FOR SOME OTHER PURPOSE S 101A 76 (II) ATTACKING CREDIBILITY (EVIDENCE ADDUCED IN CROSS-EXAMINATION) S (III) REBUTTAL EVIDENCE TO DENIALS FOLLOWING ATTACKS ON CREDIBILITY S

3 (D) RE-ESTABLISHING CREDIBILITY S (I) ADDUCING EVIDENCE OF A PRIOR CONSISTENT STATEMENT (PCS) WITH LEAVE S 108(3) 82 (II) THE DOCTRINE OF RECENT COMPLAINT AND RE-ESTABLISHING CREDIBILITY 83 ADMISSIBILITY OF EVIDENCE OPINION 86 (A) THE OPINION EVIDENCE EXCLUSIONARY RULE (S 76) 86 (B) EXCEPTIONS 86 (I) WHERE OPINION EVIDENCE IS RELEVANT FOR SOME OTHER PURPOSE (S 77) 86 (II) LAY OPINION (S 78) 87 (III) EXPERT OPINION EVIDENCE (OPINION BASED ON SPECIALISED KNOWLEDGE ) S ADMISSIBILITY OF EVIDENCE CHARACTER (OF THE ACCUSED) 95 (A) TJ HAS A BROAD DISCRETION TO LIMIT USE DIRECTION BY THE TJ 95 (B) GOOD CHARACTER EVIDENCE IS ADMISSIBLE, AND REBUTTABLE 96 (I) CAN BE LIMITED TO GOOD CHARACTER IN A PARTICULAR RESPECT (S 110(1), ZURITA) 96 (II) BAD CHARACTER REBUTTAL EVIDENCE MAY STILL BE EXCLUDED UNDER SS 135, (III) S (D) LEAVE IS REQUIRED TO XXM D ABOUT GOOD CHARACTER EVIDENCE (S 112) 98 (D) SPECIAL CASE OF EXPERT OPINION CHARACTER EVIDENCE ADDUCED BY THE ACCUSED IS ADMISSIBLE (S 111) 98 ADMISSIBILITY OF EVIDENCE TENDENCY AND COINCIDENCE 99 (A) THE TENDENCY AND COINCIDENCE EVIDENCE RULES 100 (I) THE TENDENCY EVIDENCE EXCLUSIONARY RULE AND REST (JACARA, S 98) 101 (II) THE (NOT A) COINCIDENCE EVIDENCE EXCLUSIONARY RULE AND TEST (S 98) 102 (III) THE EXTRA PROTECTION PROVISION FOR THE CRIMINAL D PROBATIVE VALUE MUST SUBSTANTIALLY OUTWEIGH PREJUDICE (S 101) START HERE FOR EVIDENCE IN CRIMINAL CASES 102 HOW THIS INTERACTS WITH SS 135, 137 AND THE DISCRETIONS TO EXCLUDE EVIDENCE 102 (B) EA TENDENCY AND COINCIDENCE CASES 102 (I) APPLY THE STATUTORY TEST NOT PFENNING, BUT ELLIS 102 PROOF PART (A) INFERENCES FROM THE ABSENCE OF EVIDENCE 106 (I) WHAT ABOUT THE D S FAILURE TO TESTIFY IN A CRIMINAL TRIAL? YES (WEISSENSTEINER) 106 (II) JONES V DUNKEL DIRECTIONS SHOULD (ARGUABLY) NOT BE GIVEN IN CRIMINAL TRAILS S 20(2) (AZZOPARDI) 108 (B) JUDICIAL GUIDANCE AND WARNINGS 109 (I) WARNINGS ABOUT UNRELIABLE EVIDENCE (S 165) 109 (I) WARNINGS IN RELATION TO DELAYED COMPLAINT CASES 110 (III) WARNINGS ABOUT THE EVIDENCE OF CHILDREN (S 165A) 113 (C) JUDICIAL NOTICE S

4 (1) Intrductin This curse is abut Hw t adduce evidence Admissibility f evidence Prf Materials Unifrm Evidence Law: Cmmentary and Materials (5 th Editin 2015) Evidence Act 1995 (NSW) Victrian Judicial Cllege E.g. has a lt f flw charts n their website Assessment Optinal mid-term exam 3 September Must register fr this (A) Intrductin Substantive law lays dwn rules f behaviur fr legal persns t fllw (E.g. law f trts, cntract, prperty etc). Prcedural r adjectival law are rules that enable substantive law t be enfrced. Evidence law is f the latter kind. (i) The adversarial setting f evidence law In an adversarial system, the parties t the prceeding, nt the curt, determine the issues which they will fight. The parties, nt the curt, btain and prduce evidence in supprt f their case. This is the principle f party presentatin. In the criminal cntext, this mdel is mdified in ways t affrd the accused certain prcedural safeguards. In a civil cntext, there is an emphasis f efficient case management. The tribunal f law (judge) cntrls admissibility and use f evidence under evidence law and can direct the jury (if any) n their fact-finding. The tribunal f fact (judge r jury, as the case may be) weighs up the evidence and reaches a verdict. (B) The trial prcess s 9 General pwers f the curt (1) The pwers 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 (2) In particular, the pwers f a curt with respect t abuse f prcess in a prceeding are nt affected s 26 Curt s cntrl ver questining 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 4

5 (d) The presence and behaviur f any persn in cnnectin with the questin f witnesses s 27 Parties may questin witnesses A party may questin any witness, except as prvided by this Act s 28 Order f examinatin in chief, crss-examinatin and re-examinatin Under the curt therwise directs: (a) Crss-examinatin f a witness is nt t take place befre the examinatin in chief f the witness; and (b) Re-examinatin f a witness is nt t take place befre all ther parties wh wish t d s have crss-examined the witness s 29 Manner and frm f questining witnesses and their respnses (1) A party may questin a witness in any way the party thinks fit, except as prvided by this Chapter r directed by the curt (2) A curt may, n its wn mtin r n the applicatin f the party that called the witness, direct that the witness give evidence whlly r partly in narrative frm (3) Such a directin may include directins abut the way in which evidence is t be given in that frm (4) Evidence may be given in the frm f charts, summaries r ther explanatry material if it appears t the curt that the material wuld be likely t aid its cmprehensin f ther evidence that has been given r is t be given (C) Relatinship between the Evidence Acts, the CL and ther statutes Until 1995, the law f evidence was largely part f the CL (prduct f lng histrial develpment by the curts themselves) with nly limited statutry mdificatin. With the enactment f the Evidence Act 1995 (Cth) and (NSW) must existing statute law dealing with rules f evidence in thse jurisdictins was abrgated. The Act have been held t cver th field in a number f areas (mst ntably in relatin t the admissibility f evidence rules (Telstra Crp v Australia Media Hldings (N 2) (1997); McNeil v The Queen (2008)) and in these fields the cmmn law rules n lnger apply. Hwever, the Acts, in large measure, are nt a cde (I.e. are nt exhaustive) and s ss 8, 8A and 9 prvide that the Acts perate with ther statute and laws. Hwever, the curts have thugh tit incrrect t use pre-existing laws f evidence (CL and equity) t interpret the Act. s 8 Operatin f ther Acts This Act des nt affect the prvisins r peratin f any ther Act E.g. Crimes (Frensic Prcedures Act) 2000 (NSW) statute rules re admissibility f evidence where samples taken by plice unlawfully Criminal Prcedure Act 1986 (NSW) s 281 prvides admissibility requirements fr certain evidence in respnse t verballing issues. s 9 Applicatin f cmmn law and equity (1) This Act des nt affect the peratin f a principle r rule f cmmn law r equity in relatin t evidence in a prceeding t which this Act applies, except s far as this Act prvides therwise expressly r by necessary intendment (2) Withut limited subsectin (1), this Act des nt affect the peratin f such a principle r rule as far as it relates t any f the fllwing: (a) Admissin r use f evidence f reasns fr a decisin f a member f a jury, r f the deliberatins f a member f the jury in relatin t such a decisin, in a prceeding by way 5

6 f appeal frm a judgement, decree, rder r sentence f a curt, (b) The peratin f a legal r evidential presumptin that is nt incnsistent with this Act, (c) A curt s pwer t dispense with the peratin f a rule f evidence r prcedure in an interlcutry prceeding E.g. Evidence Act s 165B(2) (Delay in prsecutin) replaces what was previusly fund at cmmn law in e.g. Lngman v The Queen (1989) curt must infrm jury f nature f frensic disadvantage because f delay and need t take it int accunt ften arises in sexual assault cases brught years after the event harder fr D t give alibi r medical evidence s 11 als recgnises, curts have an inherent pwer t cntrl the cnduct f a prceeding and this pwer is nt affected by the Acts unless prvided fr expressly r by necessary intendment (D) Taking bjectins In practice, there is a duty placed n parties t bject where rules f evidence law are nt fllwed strictly. Leave t appeal n an unbjected errr will nly be granted where aggrieved parties can shw that the errr led t a miscarriage f justice (E.g. lst a real chance f being acquitted (Picken [2007]) E.g. Criminal Appeal Rules (NSW) (made under Supreme Curt Act 1970) REG 4 4 Exclusin f certain matters as grunds fr appeal etc N directin, missin t direct, r decisin as t the admissin r rejectin f evidence, given by the Judge presiding at the trial, shall, withut the leave f the Curt, be allwed as a grund fr appeal r an applicatin fr leave t appeal unless bjectin was taken at the trial t the directin, missin, r decisin by the party appealing r applying fr leave t appeal (E) Dispensing with the rules f evidence Evidence Act 1995 (Cth) s 190 s 190 Waiver f rules f evidence (1) The curt may, if the parties cnsent, by rder dispense with the applicatin f any ne r mre f the prvisins f: (a) Divisin 3, 4 r 5 f Part 2.1; r (b) Part 2.2 r 2.3; r (c) Part 3.2 t 3.8 In relatin t particular evidence r generally Nte matters related t evidence in child-related prceedings (within the meaning f s 69ZM f the Family Law Act 1975) are dealt with by that Act (2) In a criminal prceeding, a defendant s cnsent is nt effective fr the purpses f subsectin (1) unless: a) The defendant has been advised t d s by his r her Australia legal practitiner r legal cunsel; r b) The curt is satisfied that the defendant understands the cnsequences f giving the cnsent (3) In a civil prceeding, the curt may rder that any ne r mre f the prvisins mentined in subsectin (1) d nt apply in relatin t evidence if: a) The matter t which the evidence relates is nt genuinely in dispute; r b) The applicatin f thse prvisins wuld cause r invlve unnecessary expenses r delay (4) Withut limiting the matters that the curt may take int accunt in deciding whether t exercise the 6

7 pwer cnferred by subsectin (3), it is t take int accunt: a) The imprtance f the evidence in the prceeding; and b) The nature f the cause f actin r defence and the nature f the subject matter f the prceeding; and c) The prbative value f the evidence; and d) The pwers f the curt (if any) t adjurn the hearing, t make anther rder r t give a directin in relatin t the evidence (F) The vir dire (s 189) Trial within a trial This is where the curt sits in absence f the jury t determine preliminary questins. It ahs als been cnsidered an apprpriate frum in which t reprimand cunsel r where cunsel may make submissin as t the running f the curt t the TJ. Determinatins f these kinds are made in absence f the jury s as nt t prejudice a party (E.g. if admissin was allegedly btained under duress this may prejudice the D s case see s 138 discretin t exclude imprperly r illegally btained evidence) s 189 The vir dire (1) If the determinatin f a questin whether: 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 (2) If there is a jury, a preliminary questin whether: a) Particular evidence is evidence f an admissin, r evidence t which sectin 138 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) Subsectin 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

8 (2) Prf Part 1 (A) What is prf? Critical t the practice f law in winning cases can nly make ut claims WITH evidence. The prf questin des the evidence as a whle prve (criminal / civil) liability t the requisite standard? This questin is separate t, E.g. the relevance questin asked f each individual piece f evidence if it were accepted, culd it ratinally affect (directly r indirectly) the assessment f the prbability f the existence f a fact in issue in the prceeding? See s 55 Bth f these questins lk at prbative value the frmer lks t the prbative frce f the evidence as a whle, the latter t the prbative value f the individual item Civil where d questins f prf arise? Leal advice n prspects f success Case preparatin gathering evidence Pleadings Interlcutry applicatin fr summary judgement r dismissal In the hearing applicatin that n prima facie case In hearing parties need t prve case Judgement judge s findings f facts frm the evidence and applicatin f law Appeals errrs f law r fact-finding? Criminal where d questin f prf arise? Plice investigatin brief f evidence DPP decisin t prsecute Accused may make N Bill submissin t DPP Cmmittal in Lcal Curt Instructins frm accused and case preparatin Applicatin fr stay f prceedings In the trial applicatin that Pradsad directin r N Case t Answer (verdict by directin) In trial Crwn must prve elements f charge (D has evidential burden t raise specific defence In trial Rulings n evidence In trial Judge directs the jury Jury cnsideratin verdict Appeal there are a number f grunds fr appeal including a challenge t a cnvictin invlving a questin f law the Curt f Criminal Appeal may als grant leave t appeal in matters invlving questin f fact r mixed questins f fact and law HCA special leave t appeal required (i) Different types f evidence Direct evidence Evidence, which if accepted, establishes the fact in issue Circumstantial evidence 8

9 Evidence, which is accepted, requires further inference t establish the fact in issue (B) Burden f prf The Act des nt deal with the allcatin f the burden f prf in respect f facts n issue, which the ALRC regarded as a matter f substantive law Apll Shwer Screens Pty Ltd v Building and Cnstructin Industry Lng Service Payments Crpratin (1985) Facts Held B&C administered a statutry scheme fr leave prvisins fr temprary wrkers in the building and cnstructin industry Cncern that Apll breached the scheme, s it sught a declaratin that its wrkers wh installed appliances were nt within the statutry definitin f wrkers within the industry The plaintiff had the nus t prve a negative prpsitin (that the class f wrk was nt usually perfrmed by a carpenter) The plaintiff must establish sufficient evidence frm which the negative prpsitin can be inferred The defendant then has 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 (C) Standard f prf (i) Types f evidence direct vs circumstantial 9 varying degrees f prbative value) Direct evidence is eyewitness evidence. It is direct in nature because if it were accepted, it wuld establish the existence f a fact in issue, E.g. I saw Bb stab Jane There are ways t challenge this evidence: Hnesty des this witness mean what she says? Perhaps she is being dishnest because f bias, previus histry f perjury, r previus histry f dishnesty ffences (including theft, fraud etc) Memry des this witness remember the event crrectly? Perhaps she is cnfusing it with anther event. Perhaps she was intxicated, infirm etc Observatinal pwers hw reliable is the witness s perceptin? Perhaps the lighting was bad, she saw it frm a distance, she has bad eyesight etc Circumstantial evidence is evidence that, if accepted, still requires sme inference t establish the existence f a fact in issue. E.g.: I saw Bb argue with Jane hurs befre the stabbing mtive/pprtunity I saw a persn utside f Jane s huse minutes befre the stabbing. I identify Bb as that persn identificatin I met Bb n the evening f the stabbing. He said t me Jane has it cming admissin The knife fund at the scene had Jane s bld and Bb s fingerprints frensic identificatin I saw Bb with a similar knife a week befre the stabbing means This evidence (eye witness accunts) can be challenged in the same way as challenging direct evidence abve. Hwever, the strength f the inferences needed t establish the facts may als be challenged 9

10 (D) Prf rules Evidence law lays dwn tw sets f rules in regard t prf Wh prves what the BURDEN OF PROOF TO what standard must the evidence prve liability the STANDARD OF PROOF (i) Criminal prf rules s 141 (i) Standards f prf (fr prsecutin (PR) and defence (D)) The PR must prve its case beynd reasnable dubt s 141(1) What des beynd reasnable dubt mean in Australia? In Australia, trial judges shuld NOT attempt t explain the cntent f this expressin Green v The Queen (1971) Facts TJ attempted t explain t the jurrs by directin the meaning f beynd reasnable dubt He said it means if yu have a nagging dubt, yu need t identify it and wrk ut whether it stems frm reasn r instead sme prejudice r self-dubt, I.e. if the dubt des nt stem frm reasn, it is nt a reasnable dubt A reasnable dubt is a dubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard f what is reasnable in the circumstances. It is that ability which is attributed t them which is ne f the virtues f the trial: t their task f deciding facts they bring t bear their experience and judgment. They are bth unaccustmed and nt required t submit their prcesses f mind t bjective analysis f the kind prpsed in the language f the judge in this case. It is nt their task t analyse their wn mental prcesses Issue was this a misdirectin by the TJ? Held (by the HCA) Yes It is up t the jury themselves t wrk ut what the expressin means Jurrs are bth unaccustmed and nt required t submit their prcesses f mind t bjective analysis f the kind prpsed in the judge s directin It is NOT their task t analyse their wn mental prcesses Nte Shepherd v The Queen (1990) In the UK, the law has mved twards the expressin sure rather than beynd reasnable dubt Facts Appeal f herin imprtatin cnvictin by Shepherd that the PR case rested n circumstantial evidence It was pssible t classify the evidence int three brad categries Statements frm undercver plice Evidence frm members f the rganised crime Financial transactin recrds attributable t the criminal dealings Held 10

11 If it is necessary fr the jury t reach a cnclusin f fact as an indispensible intermediate step in the reasning prcess twards an inherence f guilt, that cnclusin must be established beynd reasnable dubt The D must prve his / her case n the balance f prbabilities s 141(2) In the criminal cntext, the D may be required t prve aspects f his / her case (E.g. certain defences etc) (ii) Burdens f prf (fr PR and D) Allcatins f burdens are generally a matter f substantive law and thus nt prvided fr in the EAs. Hwever, the psitin is expressed clearly at CL à the PR bears the burden f prving each and every element f the ffence beynd reasnable dubt N matter what the charge r where the trial, the principal that the prsecutin must prve the guilt f the prisner is part f the cmmn law f England and n attempt t whittle it dwn can be entertained : Wlmingtn v DPP [1935] per Lrd Sankey LC The defence f insanity is a special case if it is relied upn by the D, the D bears the burden f prving its case n the balance f prbabilities. Similarly, thusands f statutry defences require the D t prve its case n the balance f prbabilities if it chses t rely upn them this ften reverses the nus f prf frm the utset E.g. Summary Offences Act 1988 (NSW) s 4A ffensive language (ffence) s 4A(2) prvides that it is a sufficient defence t the ffence if the D can satisfy the curt that it had a reasnable excuse fr using the language (n the balance f prbabilities) Distinctin b/w direct and circumstantial evidence in criminal cases Direct evidence evidence which if accepted, alne, establishes guilt Circumstantial evidence evidence f a basic fact r facts frm which the jury is asked t infer a further fact(s) t find the accused guilty E.g. Chamberlain v The Queen (1893) Guilt shuld nt nly be ratinal cnclusin but als the nly ratinal cnclusin that can be drawn frm the circumstances In ther wrds, the jury must find the accused nt guilty if there is an inference cnsistent with inncence, reasnably pen n the evidence (R v Knight (1992)) Chamberlain v The Queen (1983) Facts Crwn s case was that a baby was murdered in a car Scientific evidence that fetal bld in the car this was disputed by defence experts Held 3:2 dismissed Gibbs CJ & Masn J Fetal bld needed t be prved beynd reasnable dubt befre the ultimate inference f guilt culd be drawn beynd reasnable dubt (ii) Civil prf rules s 140 (i) Standards f prf (fr P and D) 11

12 Each party must prve its case n the balance f prbabilities s 140(1) In mre serius civil cases, it is smetimes suggested that the standard f prf is higher than mere satisfactin f the balance f prbabilities The seriusness f an allegatin made, the inherent unlikelihd f an ccurrence f a given descriptin, r the gravity f the cnsequences flwing frm a particular finding are cnsideratins which must affect the answer t the questin whether the issue has been prved... (Briginshaw v Briginshaw (1938) per Dixn J) T sme extent, this idea has been incrprated int EA s 140(2): s 140 Civil prceedings standard f prf (2) Withut limiting the matters that the curt may take int accunt in deciding whether it is s satisfied [i.e. nte: whether balance f prbabilities standard is enugh], 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 Nte Flexible test Curt may take int accunt (s 140(2)) TWO theries have flwed frm this suggestin 1. Thery 1 the civil standard is flexible and increases when the defendant has mre at stake (harder t prve), I.e. prfessinal miscnduct, prving smene has cmmitted fraud r MDC This is cnsistent with the asymmetric criminal standard f prf searing injustice f cnvicting an inncent persn far utweighs letting a guilty persn g free (Van Der Meer (1988) per Deane J) 2. Thery 2 the civil standards are fixed (at balance f prbabilities), but the prir prbability is lwer fr mre serius claims. Fraud is less cmmn than negligent misrepresentatin The curt is Neat Hldings v Karajan Hldings (1992) preferred thery 2 Qantas Airways Ltd v Gama (2008) Facts The FMC rder Qantas t pay damages fr breach f the RDA 1975 (Cth) s 9 The magistrate fund that racial remarks had been directed at Mr Gama in the curse f wrk The curt als fund that certain f these remarks cnstituted discriminatin under the Disability Discriminatin Act Held The appeal shuld be allwed in respect f the disability discriminatin findings Hwever, as essentially the same events underpinned the findings f racial discriminatin, the damages rder was nt disturbed Tenr f the judgement Twards unifrmity f the standard, rather than variability Briginshaw v Briginshaw (1938) The seriusness f an allegatin made, the inherent unlikelihd f an ccurrence f a given descriptin, r the gravity f the cnsequences flwing frm a particular finding are cnsideratins which must affect the answer t the questin whether the issue has been prved... 12

13 (ii) Burdens f prf (fr P and D) The allcatin f burdens f prf between parties is a matter f substantive law. Hwever, generally, the party alleging must prve its case n the balance f prbabilities (E) Standard f prf relating t admissibility f evidence s 142 deals generally with the applicable standard f prf in relatin t factual findings which are a precnditin t admissibility r any ther questin arising under the Act (F) Preliminary questins prf rules head n the vir die) s 142 Issues cncerning preliminary matters must be prved n the balance f prbabilities (s 142) E.g. admissibility f an admissin the D alleges admissin btained thrugh plice brutality judge is t decide questin n the vir dire D must prve the facts n the balance f prbabilities Nte s 142(2) (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) What must be prved t the requisite standard? EACH and ALL elements f the claim (civil) r the ffence (criminal) Any fact that is essential t establish an element must be prved t the requisite standard (beynd reasnable dubt r balance f prbabilities) (E) Evidentiary burden vs persuasive burden The persuasive (r legal) burden is what has been discussed abve e.g. prving the elements f an ffence t the requisite standard The evidentiary burden, in cntrast, is a questin f law (fr the judge, E.g. t be cnsidered after the plaintiff / prsecutin has made its case) the fllwing questin must be asked: COULD the evidence TAKEN AT IT S HIGHEST persuade a reasnable fact-finder t the requisite standard? Nte This gives the judge sme cntrl ver the factual issues that reasn the fact-finder It is smetimes (incrrectly) called the burden f prductin Evidence here is taken at its highest (I.e. its weight in terms f credibility des nt cme int play Generally, where ne party bears the persuasive burden, it ALSO bears the evidentiary burden. E.g. D bears bth persuasive and evidentiary burden fr relying n defence f insanity Hwever, in sme instances, there may be a SPLIT BURDEN, e.g. in relying n self-defence, D bears the evidentiary burden, but after it is discharged P still has the persuasive burden (tricky cncept) 13

14 (F) Is there a prima facie case r n case t answer? The plaintiff (r prsecutin) must discharge the evidentiary burden in relatin t the elements f its claim r elements f the ffence At the cnclusin f the plaintiff (r prsecutin s) case, the defendant may make a n case t answer submissin, that is, even taking the evidence at its highest, the plaintiff / prsecutin culd nt persuade a reasnable fact-finder t the requisite standard (i.e. that the plaintiff / prsecutin HAS NOT discharged the evidentiary burden) and that the defendant needn t put n any evidence If the judge then uphlds this submissin: In a criminal trial, the jury will be directed t acquit: see Dney v The Queen (1990) In a civil trial, the judge will find fr the defendant. Dney v The Queen (1990) Facts Cnvictin fr imprting cannabis, but the PR 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 Dney appealed n the basis 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 But if the judge dismisses the n case t answer (r is satisfied that the plaintiff/prsecutin has discharged the evidentiary burden) i.e. that there IS a case t answer, the plaintiff/prsecutin still has t discharge the persuasive burden at trial (May v O Sullivan (1955)). This has the cnsequence that the defendant may still chse t put n evidence n and still cme ut with a successful verdict in the end (but nte: in a civil trial, after a n case t answer submissin is dismissed then the defendant needs t seek leave t put n further evidence, but need nt. In a criminal setting, the case just cntinues) May v O Sullivan (1995) Facts May cnvicted f tw charges related t betting If May s evidence had been believed it wuld have established that he was nt present when all but ne f the alleged bets had been made The magistrate did nt believe the evidence, and instead accepted withut qualificatin the evidence f the chief prsecutin witness The decisin was appealed 14

15 (3) Adducing evidence witnesses and real evidence Adducing rules gvern HOW evidence is brught befre the curt admissibility is a separate questin it is asked immediately AFTER evidence is adduced (A) Calling a witness In the adversarial setting, the calling f witnesses is very much left in the cntrl f the parties (whether it be a criminal r civil trial) Fr a curt t call witnesses, it wuld: (i) Disrupt a party s preparatin f the case; and (ii) Give rise t an apprehensin f bias (Clark Equipment Credit f Australia v Cm Factrs Pty Ltd (1988)) Hwever, this may be apprpriate where there is a weak r unrepresented party (Sharp v Rangtt (2008)) The curt has the pwer at CL (nw cdified in statute) t deal with witnesses (s 11) and t cntrl questining f witnesses (s 26) Save in the mst exceptinal circumstances, the trial judge shuld nt call a witnesses (Apstilides) s 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 (2) In particular, the pwers f a curt with respect t abuse f prcess in a prceeding are n affected s 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 and witness; and (d) The presence and behaviur f any persn in cnnectin with the questining f witnesses (i) Prsecutr s duty t call all witnesses t unfld the narrative All available witnesses necessary t unfld narrative (particularly eyewitnesses t disputed events see exceptins [belw] Unlike the civil case, the criminal trial is accusatrial Thus, the prsecutr shuld be detached, and has strng duties f fairness, I.e. t present the case fairly, t assist the curt in finding the whle truth (Whitehrn (1983)) The prsecutr has a duty t call all available witnesses necessary t unfld the narrative Exceptins Where evidence wuld be repetitius Where the / a witness wuld be unreliable, untrustwrthy but ntice must be given t D that such a witness will nt be called Nte the PR must give prper cnsideratin t the questin f chsing nt t call an unreliable witness, perhaps incl. a cnference with the witness in questin (Apstilides) Nte that it is an insufficient reasn NOT t call a witness ONLY if: 15