Evidence&in&Proof&and& Theory&

ADELAIDE&UNIVERSITY&! Evidence&in&Proof&and& Theory& [Type&the&document&subtitle]&! Bachelor!of!Law! Semester!2!2014!!! Good!luck!

Tips on using these notes First things first: These notes are not a complete substitute for lectures and seminars! You will have to understand the content of this course if you want to get a high mark. I used these notes for my exam, but I am aware that these notes that a ton of content in them. After the necessary readings, lectures and seminars have been attended to, then these notes should be used. They can double as study notes, but as mentioned above, they are not to be used alone. As a standard law school strat: Tab each chapter, and print two pages on one horizontally. It will be easier in time. The rules in these notes are from the end of 2014, thus they should be up to date. This is a confusing course and you will hear different versions of the same thing, even from lecturers and seminar leaders. These notes are quite reliable in such a case. Read these notes for revision during SWOTVAC to help families yourself with the navigation of these notes. These notes are rich with content, so it is critical that you can find your way around it. Highlight stuff! Word Count: 62694 words 1"

INTRODUCTION! The law of evidence: " Regulates the process for proving material facts; " (Together with adversary system) Sets up a procedure by which evidence is presented; " Determines what evidence a court is entitled to consider in determining whether material facts have been proved ie. Provides rules that in some situations relevant evidence cannot be received (ie. rules of inadmissibility). SOURCES OF EVIDENCE LAW! Application of evidence legislation depends on the court you are appearing before (NOT the jurisdiction that the court would be exercising).! SA courts follow the common law of evidence as modified by the Evidence Act 1929 (SA).! Federal & ACT courts follow the Evidence Act 1995 (Cth) (s 4). " This Act doesnʼt apply in SA courts merely because they are exercising federal jurisdiction. " The common law exclusionary rules are codified by s 56(1): Except as otherwise provided by this Act, all relevant evidence is admissible.! NSW & Tasmanian courts follow the Evidence Act 1995 (Cth) (Evidence Act 1995 (NSW) & Evidence Act 2001 (Tas)). CIVIL & CRIMINAL CASES! Insofar as evidential rules define a process of adversarial proof, they apply in both civil & criminal cases.! Insofar as evidential rules exclude/control the tender of evidence because of the risks of unreliability, they are of much greater practical concern in criminal cases.! There are special rules in criminal cases which: " exclude evidence of an accusedʼs character; " control the reception of confessional evidence [& evidence obtained by police illegality/impropriety]; " require warnings to be given [to juries] in the case of unreliable witnesses. JUDGE & JURY ROLES! A juryʼs role is to decide the facts which are legally determinative of the case.! A judgeʼs role is to: " Decide which facts are legally determinative of the case; " Decide what evidence counsel can put before the jury to prove those facts; and " Direct the jury about how that evidence can & cannot be used by them in finding the facts proved.! The judge may hold a voir dire hearing to determine the facts upon which the admissibility of the evidence depends. PROCESS OF PROOF! The issue of proof arises after the court has received all the relevant & admissible evidence that the parties wish to adduce & a case to answer has been made out. Burden of proof! Generally the Pro/Pl bears the burden of proving that the material facts exist to the required standard of proof.! At common law: " The party tendering evidence has the obligation to persuade the court that it is relevant. " The opponent generally has the obligation to persuade the court to exclude relevant evidence in exercise of the residuary discretion.! Under Uniform Acts: " Ss 135-6 only apply where the opponent can show the relevance is substantially outweighed by the stipulated considerations. " S 137 demands exclusion in criminal cases where the evidence is unfairly prejudicial. " S 138 excludes evidence shown to be illegal/improperly obtained, unless the party seeking admission can convince the court otherwise (effectively reversing the onus where the public policy discretion is invoked). Standard of proof! In criminal case: The material facts must be proved beyond reasonable doubt. (CEA s 141(1))! In civil case: The material facts must be proved on the balance of probabilities. (CEA s 140(1)) Directions to juries 2"

! Shepherd v R: In directing juries on the standard of proof, it is enough to say that the case as a whole must be proved BRD. " There is no need to analyse its meaning for it can only confuse (Green v R; R v Puhuja), nor to analyse particular inferences & direct the jury to apply the criminal standard to them.! Shepherd v R: In criminal cases turning on circumstantial evidence, the jury should be directed to eliminate all reasonable hypotheses consistent with innocence before finding the accused guilty of the Crown hypothesis (in order to avoid miscarriage of justice). " [So if D puts up possible alternative hypotheses, judge must tell jury that they must eliminate those possible hypotheses before finding that the prosecution case is made out BRD.]! Shepherd v R: The jury may draw an inference of guilt having regard to the whole of the evidence, whether or not each individual evidence relied upon is proved BRD. # So not every basic fact relied upon to prove an element of the crime by inference must itself be proved BRD. " Shepherd v R; R v Kotzmann: If it is appropriate (in the circumstances of the case) to identify an indispensable intermediate fact, it may be appropriate to tell the jury that that fact must be proved BRD before the ultimate inference of guilt can be drawn. " An indispensable intermediate fact can be: $ (a) a necessary link in a chain (as opposed to a strand in a cable) of reasoning towards an inference of guilt (eg. Dʼs vicinity to crime); $ (b) a fact that is not a necessary link in a chain towards an inference of guilt, but: (i) has a strong importance in the case (eg. in Chamberlain, the fact that the blood in the car was foetal blood); or (ii) is emphasised by counsel to the jury to be very important (eg. Kotzmann).! Adams: Numerical analysis (eg. Bayesʼ Theorem) is an inappropriate method for use in jury trials. APPEAL! Evidential error = error of law.! S 353 CLCA: If error of law > Appeal allowed " BUT appeal can be rejected if there has been no substantial miscarriage of justice (this occurs where the appellate court thinks that conviction would have been inevitable even if no error had occurred). " Where there has been acquittal after a jury trial that acquittal cannot be called into question on appeal.! In cases tried on complaint before a Magistrate, both parties have full rights of appeal to a single Supreme Court judge (s 42 MCA).! R v Kotzmann: Even if there is no particular error, an appeal can be allowed if the court feels that overall there has been a miscarriage of justice. BASIC CONCEPTS Process! 1) Is the evidence relevant? (ie: Does it tend to prove/disprove a material fact in issue?) " a) If yes, it is prima facie admissible " b) If no, it is inadmissible! 2) Even if the evidence is relevant, is there an exclusionary rule (ie: Hearsay, opinion, tendency, creditability)? " a) If no, it is prima facie admissible " b) If yes, it is inadmissible unless there is an exception to the exclusionary rule! 3) Is there a discretion whereby the evidence is to be excluded? " a) If no, it is prima facie admissible " b) If yes, it is inadmissible! 4) Is it evidence for which a warning/direction should be given? 1) Is the evidence relevant Overview:! Relevance describes the relationship between the evidence and the facts in issue! Relevance is not concerned with the value or weight of the evidence! Relevance is a prerequisite to admissibility Material facts! Material facts = the facts which, if proved, will justify a legal claim/defence being put forward by a party. [Ie. the elements of the CoA/offence/defence] 3"

" Material facts are defined by the substantive law # Determine the material facts by examining the legal basis of the claim/defence.! Material facts are in issue when disputed by the parties. " Civil: pleadings, interrogatories & notices to admit operate to narrow & define the material facts in issue " Criminal: a plea of not guilty theoretically puts all material facts in issue, but the accused may tactically limit what is in issue through his defence story (in order to appear credible). An accused may formally admit facts (s 34 SAEA). $ If D calls no evidence, no inference of guilt can be drawn from his silence (he has a right to remain silent). But if the prosecution case is strong & D does not testify to something clearly within Dʼs knowledge, the jury can take this into consideration in drawing inferences.! Use a story to bring all the evidence together that show satisfaction of the material facts. SA! Evidence is relevant if it tends to prove or disprove a material fact in issue or a fact relevant to a material fact in issue (Goldsmith v Sandilands)! Can be provisionally relevant, received conditionally on the assurance of a party that other information will be properly tendered to show the relevance of the evidence (R v Elsom) Cth! Evidence is relevant if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact issue in the proceeding (s 55(1))! Evidence is not taken to be irrelevant only because it relates to (S 55(2)) " Witness creditability " Admissibility of other evidence " A failure to adduce evidence! Can be provisionally relevant, received conditionally on the assurance that other information will be properly tendered to show the relevance of the evidence (S 57)! Can draw inferences as to relevance from the document or thing itself (s 58) Nature of evidence! Distinction based on the way evidence is tendered: " Testimonial evidence: Testimony of witnesses made to the court about their observations of relevant events. " Documentary evidence: containing relevant information (but usually need a witness to tell why it is relevant to the case). Testimony in documents (ie. statements & reports of witnesses) is generally excluded as hearsay evidence # the witnesses have to give evidence orally to the court. " Real evidence: Things that the trier of fact can directly observe himself & draw conclusions about (eg. witness demeanor). $ But real evidence must be authenticated by a witness (that it is what it has purported to be & hasnʼt been tampered with) in order to make it relevant.! Distinction based on the way evidence proves a fact: " Direct evidence = Proves a fact in issue directly without the need for inference. (Eg: The testimony evidence of an eye-witnesses who saw the event sought to be proved.) " Circumstantial evidence = Proves a fact in issue indirectly through inference. The evidence of a basic fact from which the trier of fact is asked to infer a further fact. How to prove material facts in issue (Evidence # Material facts in issue)! Material facts in issue are proved by the court receiving & considering evidence tendered/called by a party. Evidence that can be received by the court! Only relevant and admissible evidence can be received by the court for determining whether the material facts in issue are proved or not. " Relevance & admissibility are determined at trial when counsel seek to tender the evidence or ask that a jury be directed in respect of the use of evidence in the process of proof. v Basic rule: Where evidence is relevant, it must at common law be received by the court & considered by the trier of fact, unless the law steps in to exclude the evidence or limit its use [ie. a rule of admissibility]. (cf s 56 Uniform Acts) Relevance (a natural concept) (Relevance describes a relationship between tendered evidence & material facts in issue.)! Evidence is relevant where it tends to prove/disprove a material fact in issue. " It may do this directly or indirectly (eg. credibility of an eye-witness); alone or in combination with other evidence. " Whether the evidence actually proves the material facts is to be decided later by the trier of fact.! S 55 CEA: Evidence is relevant if it could rationally affect (directly/indirectly) the probability of the existence of a material fact in issue.! S 56 CEA: Except as otherwise provided by this Act, relevant evidence is admissible. 4"

! Relevance is a natural concept. The law does not provide norms for determining relevance. It is left to the common sense of courts/jury. " The process of relevance (& proof) is a process of inference (that the judge will decide by reference to his experiences of the world).! Smith v R (testimony from police officers identifying D as the culprit photographed on camera, was irrelevant under s 55 bc the officers had no knowledge beyond that of the juryʼs to support their identifications the officers had nothing to add) " *Fact in issue = whether D then standing trial is depicted in the security photos. " *POs gave evidence at trial that they had previous dealings with D & recognised the man in the photos as D. " *There was no suggestion that Dʼs appearance changed after the photos were taken. " The police witnessesʼ evidence of identity was founded on material no different from the material available to the jury from its own observation # The police witnesses were in no better position to make a comparison between D & the person in the photos than the jurors # Their evidence was irrelevant & should not be received. " But evidence of identity is relevant if: $ The witness gave evidence that the man in the photos was wearing a jacket they saw D wear previously; $ It is suggested that Dʼs appearance at trial differs significantly from Dʼs appearance in the photo; or $ It is suggested that there is some distinctive feature revealed by the photos which would not be apparent to the jury (eg. manner of walking). 2) Is there an exclusionary rule? Admissibility SA! All facts having rational probative value are admissible unless some specific rule forbids. Cth! Except as provided by the Act, all relevant evidence is presumed admissible (s 56) Rules of Admissibility (a legal concept)! Evidence is inadmissible if it might be relevant, but is excluded (or its use is limited) by the rules of admissibility [& therefore cannot be received by the court].! Inadmissibility is a legal concept. The law provides norms for determining admissibility.! Some rules of admissibility are definitive. Eg: " Hearsay rule " Public policy grounds! Some rules of admissibility are not definitive, ie. the discretions to exclude evidence.! There is some difficulty in distinguishing between q of relevance & q of admissibility (eg. Smith). It can make a difference to the burden of proof : " If itʼs a q of relevance, then the party tendering the evidence bears the burden of convincing the court that the evidence should be considered. " If itʼs a q of admissibility (discretionary exclusion), then generally the burden is on the other side to convince the court that the evidence should be excluded. [But cf. burdens under CEA]. Discretions to exclude relevant evidence Onus! Party seeking exercise of discretion must justify its exercise (MacPherson v R)! [BUT s 138 UEA requires that evidence shown by D to have been unlawfully or improperly obtained must be excluded unless the Court is persuaded by P to exercise its discretion to admit it] Appeals! Appellate Courts will not interfere with a trial judge s exercise of discretion unless the trial judge has ignored or given insufficient weight to a relevant fact or principle (House v R), and there is a strong presumption is favour of the correctness of an exercise to discretion (R v Lisoff)! Must show: " Trial judge misdirected himself about the existence of the discretion or about the facts which call for its exercise " Trial judge took irrelevant considerations into account or failed to take account of relevant considerations " Trial judge exercised his discretion unreasonably Sufficient relevance discretion (Civil + Criminal) SA 5"

! R v Stephenson: Where relevant evidence throws little light on the existence of the material facts, a court may as a practical matter refuse to receive the evidence. " [Although relevance is a natural concept, sufficiency is a legal rule of admissibility] " ie. Require ʻsufficient relevanceʼ the evidence must meet this standard. Cth! Discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger that the evidence might cause or result in undue waste of time (s 135(c))! Eg: The police s assertion of the identity of the accused was founded on material no different from the material available to the jury from its own observation, and therefore locked sufficient relevance (Smith v R per majority) Fairness discretion non confessional! Evidence can be excluded if its reception would cause the accusedʼs trial to be unfair. This only happens if there is a sufficient risk that the evidence would mislead the trier of fact into making a wrong decision (ie. risk of error).! Unfairness is concerned with the rectitude (righteousness) of the courtʼs verdict. SA (Criminal)! Discretion to exclude relevant evidence which would be disproportionately prejudicla to the accused, to ensure a fair trial and the factual rectitude of the verdict (R v Christie)! Would a jury properly directed be capable of giving the evidence appropriate probative weight, despite parts of it that might distract the jury from its task?! [Civil cases: Possible discretion to exclude on the grounds of procedural fairness if the evidence would complicate and prolong the trial (Duke Group v Pilmer)] Cth (Civil + Criminal)! Discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party (s 135(a)) or be misleading or confusing (s 135(b))! Discretion to limit the use of relevant evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party (s 136(1)) or be misleading or confusing (s 136(b)).! Criminal: Court must exclude evidence adduced by P if its probative value is outweighed by the danger of unfair prejudice to D (s 137)! Criminal: Prosecution evidence of an admission may be excluded if having regard to the circumstances in which the admission was made it would be unfair to a D to use the evidence (s 90). Unfair prejudice = Would the jury use the evidence on a basis logically unconnected with the issues in the case thereby giving the evidence more probative value than it deserves (R v Lockyer)?! R v Lobban: Examples of unfairness of a trial: " 1) Where the evidence is more prejudicial than probative. [such that the evidence is likely to mislead the trier of fact to convict not on the basis of the evidence itself] $ If Dʼs presence at the crime scene can be proved through revealing his guilt of another offence, but there is other evidence of his presence, a court may exclude the evidence revealing the other offence as too prejudicial the jury might convict D on the basis that he is a criminal. $ R v Ames: If photos are grisly & of little assistance in the case, they might be excluded as capable of misleading the jury by arousing their sympathies. $ Rozenes v Beljajev; R v Tugaga: Where evidence is merely unreliable (ie. of doubtful probative value) and this is apparent to the trier, then it cannot be regarded as potentially misleading # no reason to exclude the evidence as more prejudicial than probative. A judge can make this apparent to a jury through an appropriate direction. $ Note s 137 Uniform Acts: In criminal cases, a trial judge must exclude evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant. $ Also note that this discretion has little practical effect where a judge sits alone (judge hears evidence and determines prejudice), but is nevertheless available. " 2) Where the accused is denied a procedural protection for testing the reliability of evidence. $ R v Lobban (police unlawfully destroyed samples of cannabis seized by them from D) $ R v Kreig (D was denied the opportunity to test a blood sample for its alcohol content due to a hospital delay)! BUT Duke v R (Brennan J): An unfair trial may be caused where it can be shown that if investigators had followed correct procedures the evidence would never have been obtained. " This notion of fairness seems less concerned with rectitude than with the propriety of the collection of the incriminating evidence [controversial is this public policy more than fairness?] Public policy discretion non confessional 6"

! The public policy discretion permits exclusion of: " evidence produced by the illegal/improper conduct (R v Ireland; Bunning v Cross); or " evidence in relation to an offence procured by the illegal/improper conduct (Ridgeway v R).! Uniform Acts: s 138 (note reverse onus).! Bunning v Cross: The court must consider: " the nature & seriousness of the crime; " the nature & seriousness of the illegality/impropriety alleged; " the probative value of the evidence; in determining whether admitting the evidence would [condone illegal/improper police behaviour &] undermine the integrity of the judicial process.! Question of Law Reserved; R v Lobban: In SA, there must be a causal link between the illegality/impropriety & the obtaining of the evidence to give rise to the public policy discretion. " Lobban: the improprieties in denying subsequent testing of evidence legally obtained in the first place were held not to give rise to the public policy discretion. " But cf R v Moore (Chernov & Eames JJ): the discretion can extend to cover closely related subsequent illegality. Overlap between fairness & public policy discretions: The overall (Swaffield) discretion - confessional! R v Lobban: authority for the view that in the case of confessional evidence the fairness and public policy discretions could be regarded as combined (as per Swaffield); " In the case of other evidence obtained through impropriety, exclusion must be considered separately first as a matter of fairness (not limited to issues of rectitude), and then as a matter of public policy.! R v Swaffield: " The case involved the admissibility of confessional evidence. " In the case of illegally/improperly obtained evidence, of whatever kind, then as a matter of public policy, determine whether to convict on such evidence would be to convict at too high a price having regard to contemporary community standards. Ø This confines the fairness discretion to issues of rectitude.! Uniform Acts: s 90 confessional evidence (ʻadmissionsʼ) may be excluded where it would be unfair to the accused to use it in evidence. " Should interpret fairness here in terms of rectitude of decision rather than impropriety (which should be left to s138 discretion). Discretions to give leave! Examples of evidentiary contexts in which the courtʼs leave is required: " Witness referring to notes in-court; " Witness being asked leading questions or cross-examined by the party calling him; " Accused being cross-examined on prior convictions; " Witness being re-examined; " Witness being recalled; " Party re-opening his case.! The granting of leave really just depends on the application of the evidentiary rules in question but many of these rules are open-ended, and so leave is regarded as discretionary (in the sense that an appellate court wonʼt interfere unless the trial judge acted upon some erroneous basis or failed to take account of a relevant consideration).! S 192 Uniform Acts provides that in granting leave, the court must take into account: " The extent to which the decision might unduly lengthen the trial; " The extent to which the decision might be unfair to a party/witness; " The importance of the evidence; " The nature of the proceeding.! Stanoevski v R: Failure to consider these matters [in s 192] is a ground for appeal. 7"

PARTY PRESENTATION NATURE OF THE BURDENS OF PROOF! There are 2 adversarial burdens: " Evidential burden of proof: The burden of adducing relevant evidence of a material fact in issue. " Persuasive burden of proof: The burden of persuading the court that the evidence proves the material fact in issue [to the required standard].! The legal consequences if the burdens are not satisfied: " Evidential burden of proof: If a party bears an evidential burden, and fails to adduce relevant evidence of the material fact in issue, then the other side can submit a no case to answer in relation to that fact. " Persuasive burden of proof: If a party bears a persuasive burden, and fails to persuade the court of the existence of the material fact in issue to the required standard, then the fact is not proved. (Prasad submission if overly weak)! Even where the evidential burden is satisfied (ie. there is relevant evidence from which a material fact may be inferred), the court will only find that fact proved if the persuasive burden is satisfied (ie. the court is persuaded of its existence to the required standard).! These burdens are allocated by the law issue by issue, and wonʼt necessarily be on the same party on a particular issue. " Eg of split burdens: In a causation issue, Def bears an evidentiary burden to adduce evidence to show that it was Plʼs own negligence which caused Plʼs loss. Having adduced evidence on this point, the Pl bears the persuasive burden to show that on the BOP, the loss was caused by the breach of contract, and NOT caused by his negligence.! Tactical burden may lie on a party to adduce countering evidence where the case against him is strong & the trier of fact will probably find against him in the absence of further evidence. " There are no legal consequences if the tactical burden is not satisfied. INCIDENCE OF THE BURDENS OF PROOF Civil cases! Generally: " the Pl bears both burdens in relation to the material facts essential to establishing the CoA; while " the Def bears both burdens in relation to the material facts essential to establishing any defences / counterclaim.! Exception: Evidential burden may be on the opponent in relation to material facts that negate the existence or occurrence of the cause of action (eg: Latent pre-existing injuries) (Parkess v Crittenden)! Purkess v Crittenden: Def bears an evidentiary burden in relation to material facts that negate the existence / occurrence of the CoA. (otherwise Pl must negative all unlikely circumstances in advance, which is impossible) " *Pl sued Def for personal injury. " *Persuasive burden was on the Pl to establish causation. " *Def wanted to defeat Pl on the ground that the injuries were pre-existing. " In relation to the issue of pre-existing injury: $ the evidential burden was on Def (so it was up to Def to raise evidence of the possibility that injuries were preexisting, before the court would consider it); and once this burden is satisfied, $ the persuasive burden was on Pl (to satisfy the court that no such pre-existing injury existed). Criminal cases! Woolmington v DPP: Generally, the Pro bears both burdens in relation to all the material facts of the crime charged.! Exceptions: " A Def wishing to plead insanity bears both burdens in relation to that issue: The Def must adduce evidence & persuade the court of such insanity on the BOP. " A Def wishing to raise another defence (eg. self-defence, provocation, automatism) bears the evidentiary burden to adduce evidence of that issue. The Pro bears the persuasive burden of showing BRD that the defence does not arise. Statutory offences Burden of Proof on which party?! Woolmington v DPP: There is a presumption that the Pro bears both burdens in relation to all the material facts.! If the legislation expresses that a Def may prove a defence, this has been interpreted as placing both burdens on the Def (to show on the balance of probabilities that the defence applies).! The rule in R v Jarvis; S 56(2) Summary Procedure Act: If the legislation expresses an exception/proviso to the offence, both burdens in relation to that exception/proviso are on the Def. 8"

" Particularly where those matters within the exception/proviso are within Defʼs knowledge (the rule in R v Turner).! Dowling v Bowie: Whether a matter is an exception/proviso is determined not by just looking at the form of the legislation, but by considering all relevant circumstances [including policy]. " *Def was charged with selling liquor to Abo under Liquor Act. " *Liquor Act allowed the Protector to declare that any Abo is not an Abo for the purposes of the Act. (an exemption) " *Pro did not adduce evidence that the Abo was not exempt under the declaration. " *Def was convicted, & appealed that the Pro failed to meet its burden on the issue of exemption. " Pro had access to Gazettes & an official list of exempt Abos # Pro would have no difficulty in proving that the Abo was not exempt, but Def would [# it would be unfair to put the burden on Def] # the fact of exemption is not an exception/proviso # burden is on Pro to offer evidence of non-exemption # conviction quashed. " [Can argue the other way: As a matter of policy to reduce drunk Abos, the burden should be on the Def rather than the Pro.]! Donoghue v Terry: If an element of the offence is peculiarly within the Defʼs knowledge, and Def fails to offer an explanation of that issue, then very little Pro evidence will satisfy the burden. " *Motor Car Act prohibited using any motor car without the consent of the owner or person in possession. " *Def gave no evidence, and was convicted. " *Def argued that Pro had the burden of proving consent. " The issue of without the consent is not a matter of exception/proviso, but is an essential element of the offence. It would require unequivocal language for legislature to intend the mere use of a car to be an offence prima facie. So some evidence must be given by Pro that there was no consent. " But very little evidence will satisfy that burden, because knowledge of the consent is a matter peculiarly within the Defʼs knowledge. " There was some evidence of absence of consent, and there was no evidence to the contrary # that is sufficient to determine the case. Presumptions! Presumption of death (persuasive presumption): If prove a personʼs absence for 7 years & one would expect to have heard of his whereabouts, then death is presumed # there is an evidential & persuasive burden on the opponent to show that the person is still alive on the BOP.! Presumption that commonly used scientific instruments are accurate (evidential presumption): Once there is evidence of an instrumentʼs inaccuracy, the party relying on the instrumentʼs accuracy must persuade the court that it is accurate. SUBMISSION OF NO CASE TO ANSWER/PRASAD SUBMISSION Where the plaintiff or prosecution fail to adduce sufficient evidence of a material fact entitles the defendant to have the case dismissed without having to provide any answer to the claim. Criminal cases! Submission of no case to answer: Def has an absolute right to submit that there is no case to answer at the close of the Pro case. " If Pro fails to satisfy its evidentiary burden of proof in relation to any material fact essential to establishing the charge, there is no case to answer & the judge must acquit the Def (or direct the jury to acquit). " King CJ in Queen v Billick and Starke: Test Has the pros adduced some evidence which, taken at its strongest, and drawing all favourable inferences, is capable of persuading a reasonable trier of fact BRD that each material fact exists such that the accused could be lawfully convicted? $ Tepper v Di Francesco: The weight, credibility & sufficiency of the evidence is not considered at this stage. " If a judge erroneously rejects the submission of no case to answer > error of law > ground for appeal (s 353 CLCA). " Election issue: The judge must consider the no case submission even if Def does not elect to call no further evidence (Tepper v Di Francesco).! Sufficiency/Prasad submission: Def may request the judge to [exercise his discretion to] acquit Def early (or ask the jury to consider it) on the ground that (i) the evidence is too weak to persuade a reasonable trier of fact beyond reasonable doubt; or (ii) the evidence is so unsatisfactory (lacking in weight & reliability) that it would be unsafe to convict upon it (R v Prasad). " Def has no right to the consideration/exercise of this sufficiency submission # failure of the judge to consider the request gives no appealable right. " The judge has discretion to so direct the jury (R v Prasad) usually done only in the exceptionally weak case. " Election issue: The practice is for a judge sitting alone to refuse to consider the sufficiency submission until Def elects to call no further evidence. [This is because judges are reluctant to canvass the weight of the evidence before the close of evidence in the case.] Civil cases 9"