Lwb 432 Sarah Fynes-Clinton
Topic 2 – Facts, Proof and
Framework for Admission of Evidence
ELEMENT 1: State the Parties
ELEMENT 2: Determine the Jurisdiction
Qld or Federal?
Apply appropriate Evidence Act
ELEMENT 3: Is it a Criminal or Civil Matter
Different rules apply for both
ELEMENT 4: Burden of Proof and Standard of Proof
Burden Of Proof
The burden of proof is the responsibility of a party to introduce evidence in support of his or her case so as to persuade the tribunal of fact that the main facts in issue are established.
There are 2 so-called burdens of proof
(1)Legal
(2)Evidentiary
The "legal" burden of proof is that which requires the proponent of an issue to prove it, or lose the case.
(1)This is the obligation to persuade the jury to the requisite standard or lose the case.
The "Evidential" burden of proof is the obligation of a party faced with a legal burden to adduce evidence in order to discharge that legal burden.
(1)Basically means proving the main facts in issue by calling or tendering evidence of sufficient relevance to be admissible and to make out a prima facie case.
(2)ie having sufficient evidence to prove each element of the action.
The evidential burden determines which party must introduce evidenced so that the case goes to the jury on a particular issue:
determines which party may have to plead a particular issue, and have the right to begin calling evidence on that issue.
The legal burden determines which party will ultimately lose on an issue if the jury are undecided as to the facts.
There are four fundamental propositions in relation to the 2 principal burdens of proof:
(1)The legal and evidential burdens never shift.
(2)The legal burden falls upon the party asserting the matter (ie usually the Crown or plaintiff except for insanity or where expressly stated).
(3)The party bearing the legal burden also bears the evidential burden.
(4)The legal burden is only decisive when the evidence is evenly balanced.
Criminal Cases
General rule - the Crown bears the legal (and therefore the evidential) burden of proof.
The accused will only bear a legal and therefore evidential burden of proof in Qld where
a statute expressly places the legal burden onto the accused; or
a statute is interpreted by rules of construction as placing the legal burden onto the accused:
Woolmington v DPP
Woolmington was charged with murdering his estranged wife by shooting her at her mother’s home after an argument.
The accused said the shooting was an accident after he had produced a gun in order to make his wife think he was about to commit suicide.
The trial judge gave a direction that the prosecution had to prove that the wife died at the hand of the husband, and that once proven, the defence had to prove that it was an accident, or an act of insanity.
An appeal was lodged based on the direction, and the Court of Appeal upheld the direction.
There was a further appeal to the House of Lords.
Viscount Sankey:
“Throughout the web of English criminal law, one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and to any statutory exceptions. If at the end of, and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner as to whether the prisoner killed the deceased with malicious intention, the prosecution has not made out the case and the prisoner is entitled to acquittal. No matter what the charge, or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
Therefore it is the duty of the prosecution to prove the prisoners guilt subject to there being some form of defence on behalf of the accused (ie insanity) (see: Full case summary)
(See Case Summary)
Civil Cases
In civil cases it is almost always the plaintiff who bears the legal, and therefore evidential burden of proof
De Facto Evidential Burden
Defendant in criminal cases
Raise an issue for the jury to consider
Lead evidence or cross-examine witness
Example:
In Woolmington, the defence would lead evidence as to the killing being an accident because the prosecution is not going to raise it for them.
Where a defendant faces a tactical need to adduce evidence, even though there may be no legal requirement to do so.
May be prudent for defendant to contradict the evidence in an attempt to minimise the impact
Standard of Proof
Criminal Cases
The Crown must prove their case (ie discharge their legal burden) so that the jury are satisfied beyond reasonable doubt: s 141(1) CEA
this is a plain English phrase and does not require elaboration or explanation.
Does not apply during a Vior Dire
On the other hand, the Accused in criminal cases need only discharge any legal burden he or she may have so that the jury is satisfied on the balance or probabilities: s 141(2) CEA
Civil Cases
The standard of proof required is the balance of probabilities:
Cth – s 140 Evidence Act (Cth)
Qld – CL – Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.
This means that the court must find that it is more likely than not that the main facts in issue exist.
This is the case even where fraud is alleged: Briginshaw v Briginshaw
Voir Dire
Whether in a criminal or civil case, the standard of proof borne by the prosecution for establishing conditions precedent on the voir dire is on the balance of probabilities: R v Savage
If the defendant in a criminal case has to establish some matter on a voir dire, the civil standard of proof applies: R v Collins
ELEMENT 4: No Case to Answer
After hearing all of the evidence for the Crown or Plaintiff, the Judge may make a ruling as a matter of law that, even if the evidence were totally accepted, it would be manifestly insufficient to satisfy the tribunal of fact of all the main facts in issue.
Question whether the evidential burden is satisfied.
Only made at the point in the trial where the Plaintiff/Crown case has been closed (everything must be offered).
A no case to answer occurs when there is a submission by defendant that the Crown/Plaintiff has failed to discharge their burden of proof
The meaning of such a submission is that the first party has not discharged the evidential burden in respect of a particular issue to the required standard of proof:
if the court accepts the submission, it will withdraw that issue from the tribunal of fact.
if the issue happens to be an element of the alleged offence or cause of action, the party’s entire case will be dismissed.
Two assumptions:
Assume evidence is not contradicted (taken to have its highest credibility)
Assume direction by trial judge that here is no defect or flaw in the evidence
Question: Could persons of ordinary fairness and reason be satisfied on the evidence presented, having regard to the relevant standard, that the main facts in issue have been proved?
If NO, then the No Case submission is successful and the defendant is not required to call evidence and the case is dismissed.
If YES, then the submission has failed and the matter will be allowed to proceed. Not a fatal blow to the defendant – still possible for the jury to later throw the case out anyway.
In a civil action, you would have to be very confident to do this because after the submission is made, the respondent cannot lead any evidence.
In BOTH Qld and Cth Courts, the submission of no case to answer is entirely a CL matter and it is not referred to in either Evidence Act.
If the evidence does not make out a prima facie case, the judge/magistrate will then either:
enter judgement for the other party, in a civil case; or
direct the tribunal of fact to return a verdict in favour of the defendant, in a criminal trial.
ELEMENT 5: Identify the Main Facts in Issue
Getting Facts Into Evidence
Present evidence to the court according to the rules:
Oral testimony;
Documents;
Objects;
General Principle:
Admissible evidence is the only evidence that a tribunal of fact can make its decision on
Exception:Judicial notice and formal admissions (next week)
Main Facts in Issue
Main Facts - The main facts in issue are all those facts which the prosecution/plaintiff in a criminal/civil case is required by substantive law to prove in order to succeed.
Eg In a criminal case such as murder all the elements of an offence are main facts in issue. (unlawful killing causation, and Intention)
Eg In a civil case such as negligence all the elements such as duty, breach and damage must be established.
In addition the main facts WILL INCLUDE any further facts that the accused/ defendant must prove in order to establish a legal defence or excuse.
This could include such things as diminished responsibility (s.304A) or self defence(s.271).
ELEMENT 6: Identify the Collateral Facts
Collateral facts are those affecting:
the credibility of a witness,
those relating to whether certain types of evidence can be received (admissibility); and
those affecting judicial discretion.
These are facts that are in issue not because of the substantive law, but because of the law of evidence. So they are not facts such as Duty of Care, they are facts that require the rules of evidence requires us to establish before certain proofs can be received
Credibility
If you can establish that a fact is relevant to credibility, then unless it infringes one of the big exclusionary rules, it will be admissible.
Example
A witness can be seen to be wearing glasses. But at the place where the incident occurred, the witness was not seen to be wearing glasses.
That is obviously relevant to the credibility of that witness in the sense that it bears upon their ability to perceive things if in fact they have told the court they did in fact see things.
Example
It may be something more broad reaching- such as that the witness in the ladies washroom was heard to say “ that accused is a bastard- I am going to make sure he is going to go down.”
That statement is clear evidence of bias on the part of that witness. It is a collateral fact that bears on the credibility of the witness- the fact that she made that statement- she has some independent purpose to serve.
Admissibility
In Qld there is a best evidence rule which stipulates that if you are going to put a document in evidence it has to be the original - it cannot be a copy. What happens if you cannot locate the original?
If it has been lost or destroyed, the law of evidence will allow you to tender a copy.
So a collateral fact on which for example a witness might give testimony from the box that the document was shredded (an original).
So it is collateral material because it is related to something that the law of evidence requires to be proved before a copy document can be put into evidence. The collateral fact is the loss of or destruction of the document. This is the fact that needs to be established.
Discretion
Discretion is the notion that something may be admissible according to the laws of evidence, but the trial judge might exclude it for certain acceptable reasons, exercising a judicial discretion to do so.
The discretion is not exercised in an ad hoc way, it is a judicial discretion that must be exercise according to existing principle.
So the exercise of discretion is informed by the existence of certain facts. These are collateral facts- because it is the law of evidence that stipulates how a discretion is to be exercised and not the substantive law.
Note - For collateral facts, the standard of proof is always the balance of probabilities.
ELEMENT 7: Determine which evidence is Relevant, Admissible and place a Weight on Each
Admissibility - two requirements:
(1)Threshold test of relevance;
(2)If satisfied, have any exclusionary rules been breached (eg bad character, hearsay, opinion)?
this is legal admissibility.
then there is a third step which relates to, notwithstanding legal admissibility, whether the judge exclude it.
Relevance
All evidence sufficiently relevant to a fact in issue before the court is admissible and all evidence that is not sufficiently relevant must be excluded.
So how do you define relevant?
Qld - the general rule applies as stated at CL (not in Evidence Act 1977.)
Cth - relevant provisions are ss. 55 & 56 Evidence Act ( says the same thing as CL)
s 56 says that relevant evidence is admissible except as otherwise provided by the Act.
Something is relevant if it is relevant either to a collateral or main fact in issue: s 55(2) CEA
"Relevant" means
that any two facts that are so related to each other that according to the common course of experience one fact (either taken by itself or in connection with some other facts) indicates the likelihood of the existence of the other fact. (from SG)
that the two facts are so related that the first fact rationally affects the assessment of the probability of the existence of the second fact: s 55(1) CEA
If something is not relevant, it is inadmissible: s 56 CEA
This is a question of law for the judge – ie there is no discretion.
Evidence may be admissible for one purpose but not for another: Wilson
The exceptions to the general principle that all relevant evidence is admissible constitute specific rules such as the rule against hearsay, the rule against prior inconsistent statements etc.
They and others, dealt with later in the course, mandate that relevant evidence nonetheless remain unheard.
In turn there are exceptions to each of these exclusionary rules, which will also be examined.
Section 55 CEA –
(1)The evidence that is relevant in a proceedings is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is NOT taken to be irrelevant only because it relates to:
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to adduce evidence.
Section 56 CEA –
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding;
(2)Evidence that is not relevant in the proceeding is not relevant.
Example
Shooter is charged with armed robbery. The offender carried a shotgun but wore a mask. Just before the robbery, Shooter was seen 2 blocks away taking a shotgun out of a car boot.
One of the main facts in issue is to prove the identity of Shooter as the offender. Two facts have a bearing on this. Shooter was seen in the vicinity at the time, so had the opportunity to commit the crime and he was seen in possession of a shotgun, so she had means to commit the crime.
On this basis both facts are relevant to determining whether Shooter is guilty.
Admissibility
Admissibility is the concept of whether evidence is to be received. Thus if evidence is admissible it should be received and taken into account when determining the issues.
It is a common law concept which is not defined in the Evidence Act 1995 (Cth)
To determine whether evidence is admissible, you have to ask 2 questions:
(1)The evidence must be relevant which has been described above; and if relevant
(2)The evidence does not infringe any rule of evidence that would exclude it. (Question of law)
If BOTH rules are satisfied, then the evidence will be admissible – this is a question of law for the judge to decide – there is no discretion.
If evidence is admissible for one purpose it cannot be rejected on the ground that it is inadmissible for some other purposes: Wilson
The trial judge may direct a jury which uses they may make of evidence, and for which purposes they may not use evidence.
Wilson
Wife killed by husband.
Crown sought to lead evidence re: fights between wife and husband.
Defence objected to the evidence – trying to prove that the statements of the wife during arguments (which were relevant to intention) were hearsay.
Held that the evidence was relevant to show how far the relationship had deteriorated, but not relevant to prove that the statements of the wife were true.
Therefore the jury could only use the statements to understand the nature of the relationship, and not to prove that the husband in fact wanted to kill the wife.
Weight/ Cogency
The concept of the weight of evidence refers to the extent that it should be or might be taken into account in deciding the issues – ie its persuasive influence.
The weight of evidence which has been admitted and the extent to which it is used is a question of fact for the jury to assess. If there is no jury then it is up to the judge to assess.
Key elements to be considered in an assessment of weight.
(1)Credibility – ie whether the evidence should be believed:
Was the evidence persuasive?
This will depend on an assessment of any likelihood that the witness who gave the evidence may have some motive to misrepresent the facts or may even be lying. This involves an assessment of the credibility of the witness who gave the evidence.
Lack of credibility may be deliberate or mistaken:
may be lying;
may have faulty memory (due to lapse of time);
may not have been wearing glasses and couldn’t see properly.
(2)Degree of relevance.
(3)Probative value – ie what the evidence logically tends to prove:
What was the value of the evidence given to proving the facts is in issue?
Was the evidence given by the witness accurate? Was the witness mistaken?
This depends on an assessment of the accuracy of the powers of perception of the witness and his or her ability to both recall and recount what he or she perceived.
Example of application of relevance and cogency:
Tutorial question in week 3:
Evidence / Relevance(Question of Law) / Cogency
(Question of Fact)
- Shotgun
- Crow’s testimony:
b)identifying P with a shotgun when leaving M’s house / a)ID is main fact issue – P must be identified to be found guilty / a)Is C’s testimony credible? Look at C’s motives.
b)Is C’s testimony reliable? Look at how far away, lighting, eye impairment, whether know each other (makes easier to ID), etc
- Det. Starling’s testimony re: Anonymous telephone call
b)Collateral fact – goes to admissibility of shotgun and urgency of Det. S’s actions re: warrant / a)Was caller reliable source? – Difficulty in assessing because anonymous – not able to test cogency in witness box. Makes more difficult for Det. S to justify actions
- Det. Starling’s finding of shotgun
- P’s criminal history
ELEMENT 8: Determine If Any Judicial Discretion Applies?