LWB432 Murray McCarthy

Week 2

KEY CONCEPTS IN 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.
  • 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

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

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)a statute expressly places the legal burden onto the accused; or

(b)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 mothers 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.

-Judge said it was 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)

Civil Cases

  • In civil cases it is almost always the plaintiff who bears the legal, and therefore evidential burden of proof

Note: That more often than not the dynamics of the adversarial system can produce a de facto situation in both criminal and civil trials 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.
  • 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.

Civil Cases

  • The standard of proof required in the balance of probabilities:

-Cwth – 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 te main facts in issue exist

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.
  • 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
  • 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 successful and defendant not required to call evidence and the case dismissed.
  • If YES, then 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 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.

ELEMENT 5: Identify the Main Facts

  • 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 negliegnce 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; 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 adhoc 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

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 provision is s.56 Evidence Act ( says the same thing as CL)

  • "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.

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 vacinity 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. Firstly, the evidence must be relevant which has been described above; and if relevant
  2. Secondly, the evidence does not infringe any rule of evidence that would exclude it.

If BOTH rules are satisfied, then the evidence will be admissible (matter for judge to decide)

  • If evidence is admissible for one purpose it cannot be rejected on the ground that it is inadmissible for some other purposes. The trial judge might of course tell a jury what uses they may

Weight

  • 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.
  • The weight of evidence which has been admitted and the extent to which it is used is a question for the jury to assess. If there is no jury then it is up to the judge to assess.

Two key elements must be considered in an assessment of weight.

  1. The first is whether the evidence should be believed.

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 lyinging. This is an assessment of credibility.

  1. The other possibility is that the witness may not be lying but is simply 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. This too is an assessment of the credibility of the witness.

ELEMENT 8: Determine if any judicial discretion applies?

  • The concept of judicial discretion centres on the ability of the trial judge to refuse to admit evidence, even though it is relevant and otherwise admissible in the sense that it does not infringe any of the technical exclusionary rules.

In Australia, we recognise two separate and distinct aspects of the discretion:

  1. The fairness discretion and
  2. The public policy discretion.

The Fairness Discretion: Qld State Courts

Queensland:

  • Outlined in s.130 of the Evidence Act 1977. (does no more than preserve the CL).
  • Only applies to Crim cases

There are two things to note

  1. the Fairness discretion at CL is a discretion to exclude otherwise admissible evidence. There is no discretion to receive otherwise inadmissable evidence
  2. The fairness discretion applies at law in criminal trials only
  • In CRIMINAL CASES the judge has a responsibility to ensure that the accused receives a fair trial. Thus, a judge may exclude otherwise admissible evidence which operates unfairly on the accused in the sense that it places him or her at risk of being improperly convicted.

Two common situations arise where the trial judge must consider exercise of this discretion

(a)where the impugned evidence is unreliable

for example a confession contained in an unsigned record of interview

(b)where the evidence is otherwise prejudicial;

for example where it may be used by the jury to draw impermisssable inferences, or create an unwarranted bias against the accused despite careful direction by the court.

  • In Hasler, it was noted that the exercise of the discretion is not generally called for unless the evidence is of only slight probabtive value and the prejudicial effect of its admission would be substantial. This view is consistent with the formulation stated in Noor Mohammed

Therefore in Qld there is a 2 stage process as to whether the fairness discretion can be exercised:

  1. It cannot be exercised unless the evidence concerned is only of slight probative value.
  2. If that is so then the evidence may be excluded if, but only if, it is also of potentially significant prejudice in terms of the accused receiving a fair trial

Example

  • Shooter is charged with armed robbery. A witness identifies him as the person she saw menace the teller Witness says he is certain it was Shooter because they both shared a cell for 12 months.
  • The fact that the witness shared a prison cell with Parrot is objectionable. It informs the jury that Parrot has a criminal history and may well infer that since Parrot has committed criminal acts in the past, he is most likely to be the offender in this case as well.
  • The evidence of being in prison has little or no probative value over and above Witness having a witness of accuracy concerning identification. Thus, an application to exclude the material about sharing a prison cell would probably succeed.

Commonwealth

  • Cth - Evidence Act (Cth) gives a far more detailed scheme for application of the fairness discretion than at CL.
  • Ss135-137 creates a discretion to exclude otherwise admissible evidence

The Act extends the Common Law in at least two significant ways:

  1. The discretion is made available in ALL civil cases
  2. The discretion is extended to operate in situations other than those confined to strict consideration of the need for the defendant to receive a fair trial

Section 135 provides:

The court may refuse to admit evidence if its probabtive value is substantially outweighed by the danger that the evidence might -

(a)be unfairly prejudicial to a party; or

(b)be misleading or confusing; or

(c)cause or result in undue waste of time

  • s.135 does NOT require that the evidence must be of slight or low probative value.

s135 is formulated so that even evidence of high probative value could be excluded if that probative value is substantially outweighed by one of the three dangers listed.

S135 will be likely to be confined to civil cases.

Section 137 provides:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant

  • S137 would be friendlier to criminal cases. It only applies here. It has a mandatory discretion.
  • It is not a true discretion in the sense that the judge is always at liberty to decide whether in a particular case it should be exercised.
  • It applies only to prosecution evidence and only therefore to the benefit of the accused.
  • The formula which it lays down is that that evidence has a probative value which is outweighed by the danger of unfair prejudice to the def. Two things to see there. It doesn’t require the probative value to be low or slight in any way and secondly, any danger is good enough - substantial is not required.
  • s136 applies in criminal and civil cases and provides the judge with an option that falls somewhere short of full exclusion of the evidence. It allows the judge in his discretion to limit use of evidence.
  • In other words quarantine it, and have it considered by the tribunal of fact in some issues but not others. That may be done if there is a danger that a particular use of the evidence will either be unfairly prejudicial to a party or will be misleading or confusing- no reference here to a undue waste of time, and there is no need for any element of substantiality in the prejudice.

The Policy Discretion

Queensland:

  • The Evidence Act 1977 makes no mention of such a discretion, so once again it is the common law which regulates the position in Queensland State Courts: Crown v Ireland
  • Only applies in Crim cases
  • Whilst there is no rule of law that relevant evidence obtained by illegal means cannot be admitted, the Australian Courts have recognised a judicial discretion in criminal trials to exclude such evidence based on the public policy grounds that those who enforce the law should themselves abide by it
  • This discretion is normally exercised when the conduct of the police or other people involved in gathering the relevant evidence is either illegal or in some sense improper.

Bunning v Cross

-Driver of car stopped by Police in Perth

-Police said he was drunk and weaving all over the road

-Police were confident he was drunk, skipped the low in the bag and took him straight to the police station

-Question as to admissibility of alcohol reading at station

Held

-leading judgment being the joint judgment of Stephen and Aicken JJ.

-In their judgment they articulate the considerations that underlie the public policy discretion. On the one hand lies "….the desirable goal of bringing to conviction the wrongdoer…" On the other hand lies an avoidance of "….the undesirable effect of curial approval, or even encouragement being given to the unlawful conduct of those whose task is to enforce the law".

This judgment contains 5 essential factors which must be considered in determining whether the public policy discretion should be exercised. In summary these factors are:

  1. Whether the conduct resulted from genuine mistake or a deliberate breach of the law

If it was a mistake the stronger the argument against exclusion of the evidence

  1. The probative value to crown - If the conduct was deliberate, the cogency of the evidence cannot be considered unless the evidence is vital to the crown case and was perishable or evanescent nature.
  1. The ease of compliance - You must determine whether the conduct was a genuine response to pressing circumstances or a mere cutting of corners for the sake of convenience. If the former, the stronger the argument against exclusion.
  1. The Nature of the Offence - The more seriousness the charges, the stronger the argument against exclusion.
  1. Has the conduct caused a breach of statute? If yes, and the purpose of the statute was to require police to do the very thing they didn’t do, then the stronger the argument supporting exclusion.

Commonwealth: