LAWS13010 - Evidence & Proof
Topic 1: Basic Principles of Evidence Law
1.0 Objectives
After studying Topic 1 you should be able to:
● Identify the role of evidence in the legal reasoning process;
● Describe the difference between facts, information and evidence;
● Distinguish, in general terms, between testimony, documentary evidence and real evidence;
● Identify the burdens and standards of proof which apply in different legal circumstances;
● Identify the ways in which evidence can become the basis for adversarial contention in a courtroom;
● Identify Queensland legislation relevant to evidence law; and
● Distinguish between common law and Uniform Evidence Act schemes of evidence.
2.0 Introduction
Evidence is a word that most of us use casually and frequently; it is a concept with which we are all intuitively familiar, and most of us use the word routinely outside any legal context. “Where’s the evidence for that?” “Show us some evidence and then we’ll accept it!” “Evidence” suggests that we are not simply prepared to believe a proposition; we want to be presented with some sort of information, outside the proposition itself, to convince us that it is true.
Strangely enough, the meaning of the word “evidence” in a legal context is almost the same as in the general, everyday context.
Any legal dispute - whether before a court or not - will be contested by two or more parties who have a profoundly different view as to what happened in the course of their dispute. Each party will swear blind that their account of the facts is true. Their account of the facts, you will be surprised to learn, is the one that presents them in the best light!
In order to determine a just outcome to the dispute, the legal process needs a way of answering a fundamental question: What happened? Evidence law, combined with civil and criminal procedure, provide the means for the legal process to work this out.
In short, the party which can bring forward the best, most compelling evidence for their version of the facts, is likely to have that version of the facts accepted.
Evidence law can sometimes be a frustrating area of law for students to study. For one thing, while the laws of evidence have been formulated to assist courts to provide justice, it can often seem that they have the opposite effect - for instance, the laws of evidence may exclude, on what appear to be very technical grounds, a piece of evidence which (if accepted) would have been compelling. The exclusion of that evidence may result in a legal win for the “wrong” side. In the broad though, you will discover by the end of the course that the rules of evidence tend to result, more often than not, in the courts having the maximum possible amount of sufficiently reliable information with which to make their decisions.
For some reason, students often seem to struggle with Evidence as a university subject. In my view, this is often because students become bogged down in the detail of the rules of evidence, and fail to step back from time to time and see the rules of evidence as a legal scheme. It is important to understand the purpose of each of the rules we discuss; and to understand that purpose in the context of the fundamental task of assisting the court to come to the best, most reliable understanding of the basic question: What happened?
3.0 Prescribed reading
● David Field, Queensland Evidence Law (2nd ed, 2011) Ch 1.
4.0 Reference reading
Secondary Materials
● Mirko Bagaric & James McConvill, ‘Evidence Law - When You Are In A Hole, Stop Digging’ (2005) 1 Original Law Review 10.
● Eilis Magner, ‘The Best Evidence - Oral Testimony or Documentary Proof?’ (1995) 18 University of New South Wales Law Journal 67.
Cases
R v Pfitzner (1976) 15 SASR171, 196-197: A good general description by a common law court of the role of evidence.
Woolmington v DPP [1935] UKHL 1: One of the most famous cases of them all, establishing for all time the duty of the prosecution to prove the elements of a criminal charge beyond reasonable doubt. A cracker of a set of facts too. http://www.bailii.org/uk/cases/UKHL/1935/1.html
Dowling v Bowie[1952] HCA 63: Another onus of proof case, but a much more complicated one showing how difficult it can sometimes be to tell whether a matter forms part of the charge (with the Prosecution therefore bearing the onus) or whether it is a statutory defence (with the Defence bearing the onus). A harder case to read, and in this day and age one cringes at the racial language. http://www.austlii.edu.au/au/cases/cth/HCA/1952/63.html
Briginshaw v Briginshaw [1938] HCA 34: The classic case establishing the Briginshaw or sliding-scale standard of proof in civil trials. The key judgments are those of Latham CJ and
Dixon J. In my view Dixon’s judgment is the one to read - it is shorter, easier to read, and captures the concept beautifully. http://www.austlii.edu.au/au/cases/cth/HCA/1938/34.html
5.0 Key Terms
The following are key terms used within the text or required reading for Topic 1.
Admissibility: Evidence is admissible if it meets the requirements of evidence law; that is, if it is relevant and is not excluded by one of the rules of evidence.
Adversarial law: Adversarial law describes the familiar process whereby cases are decided by a judge who hears two or more parties, arguing against one another.
Burden of Proof: The burden of proof in relation to any given proposition is said to fall on one of the parties in the case; that party must prove that the proposition is true. A party which does not bear the burden of proof is not required to demonstrate that the proposition is false.
Evidence: Evidence, in this context, refers to information which is presented before a Court with the intention of having the evidence admitted; so, evidence is information which is, or is purported to be, suitable for consideration by the court.
Ordeal: Refers to an ancient process of testing guilt or innocence by requiring the accused person to suffer or endure some harsh circumstance. The manner in which they endured the circumstance was said to prove their innocence or guilt.
Probative value: The probative value of a particular piece of evidence is its persuasiveness in relation to a particular proposition. Evidence which is relevant, but not terribly compelling, has low probative value; evidence which is almost conclusive is said to have high probative value.
Reliability: The reliability of evidence is the extent to which it can be believed. Evidence can therefore be highly probative, but unreliable.
6.0 Evidence law in history
For so long as one being has sat in judgment over another, there have been some form of rules of evidence. The Christian book of Genesis, for instance, which tells one version of the earliest days of humanity, has God asking both Adam and Eve whether they ate the fruit of the tree of knowledge - in other words, hearing their testimony - before casting them out of the Garden of Eden [Genesis 20:9-13]. The ancient legal code of Hammurabi of Babylon (written nearly 1800 years BC) describes, in its first four provisions, the penalties for bearing false witness in legal trials (for instance, the third provision is that “If a man has borne false witness in a trial, or has not established the statement that he has made, if that case be a capital trial, that man shall be put to death.”) The Roman Justinian Code, written 1500 years ago, and which formed the basis for much modern law, included sophisticated laws of evidence. Plato, in his dialogues on Laws, discussed evidence. In fact, it is almost impossible to imagine a legal code without rules of evidence.
However the existence of rules of evidence does not necessarily imply the existence of good rules of evidence. In the earlier days of civilisation, superstition often outweighed logic as a means of arriving at decisions. Hammurabi’s code, mentioned above, included an early example of what later became known as “trial by ordeal”:
If a man has accused another of laying a kispu [spell] upon him, but has not proved it, the accused shall go to the sacred river, he shall plunge into the sacred river, and if the river shall conquer him, he that accused him shall take possession of his house. If the sacred river shall show his innocence and he is saved, his accuser shall be put to death. He that plunged into the sacred river shall appropriate the house of him that accused.
It can be seen that the relevant rule of evidence was that the sacred river was capable of determining guilt or innocence; and that the testimony of the river itself was regarded as determinative. One suspects that swimming lessons would have been a wise investment in ancient Babylon.
Trial by ordeal reappeared in mediaeval times in England and elsewhere in Europe. King Henry II of England, often considered to be the “father” of the common law, was not always quite so enlightened. The Assize of Clarendon, 1166, requires anyone accused of being a “robber, murderer or thief” to undergo “the judgment of water”, which involved the accused plunging their hand into a kettle of water after the water had been boiled. If, three days later the burns had healed, it was considered that God had intervened to demonstrate their innocence. As late as the seventeenth century, women accused of witchcraft were notoriously submerged in water on the theory that witches would float, while innocent women would sink (and therefore drown - oh, happy acquittal!).
Like most aspects of the common law, it is not possible to select an arbitrary time, or a single judgment, in which we might say the modern laws of evidence came to fruition. A number of important landmarks might be identified. My favourite is the Magna Carta, Article 38 of which states “In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.” Other significant events could be chosen - one might suggest, for instance, Jeremy Bentham’s publication in 1827 of the book Rationale of Judicial Evidence. The important message, however, is that evidence law was a creature of the common law. Over time, the courts themselves gradually devised the rules of evidence by which they could feel they had a proper understanding of the disputes which had been brought before the court for judgment. In Queensland, our laws of evidence are still primarily based on those common law rules which emerged over the centuries.
Activity
In the quotation from the Magna Carta given above, on whom does the burden of proof fall?
a The accuser;
b The accused; or
c The judge.
Answer (a)
From the perspective of evidence law, which of these criticisms of trial by ordeal are valid?
a Trial by ordeal has low probative value;
b Trial by ordeal relies on nonsense assumptions about the presence and actions of a God;
c Trial by ordeal places the burden of proof on the accused; and
d Trial by ordeal sets the standard of proof too high, because it literally requires a miracle to secure an acquittal.
Answer (a), (c) and (d). While many people might agree with (b), from the perspective of evidence law, it is not necessary to form views about the existence or activities of a God.
7.0 Where does evidence fit?
By this point in your law studies, virtually all of you will have been introduced to the legal reasoning pattern known as ILAC or IRAC. The acronym stands for Issue, Law/Rule, Application, Conclusion. In order words, when confronted with a legal problem question, you should identify the legal issue, identify the relevant authoritative law, apply the law to the facts, and from this process draw a conclusion.
This form of reasoning assumes that the facts are reasonably uncontroversial. In most problem questions which you have faced to this point, the facts would have been presented as part of the question - because the purpose of the exercise was to test your knowledge and application of the law.
Real life, of course, doesn’t work that way. In a real legal dispute, before you can apply the law to the facts, you have to figure out what the facts actually are - and the two sides often do not agree. The law of evidence, as noted above, provides the means for the court to identify the best-supported version of the facts. Consequently evidence law takes place entirely within the “A” part of the IRAC/ILAC legal reasoning process.
This, in turn, means that evidence law is rarely the final determinative factor in a legal dispute. Evidence law is applied to determine what facts the law applies to; however it will still be necessary to actually apply the law. For example, let us assume two parties are involved in a contract law dispute, where Party A has failed to paint Party B’s house sufficiently well. Party A is suing for breach. One of the key issues is obviously whether the house was painted sufficiently well. Resolving this issue will certainly require the use of evidence law - parties might present photographs, or expert evidence, or other forms of evidence of the standard of work. However even once this is done, it will still be necessary to apply the law, in order to determine whether the standard of work constituted a breach of this particular contract.
8.0 Some basic concepts: Facts, information and evidence
These three terms - facts, information and evidence - are often used interchangeably, which is a pity. They do actually have distinct meanings, and understanding the distinctions can help you to understand the rationale behind evidence law.