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EVIDENCE

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TABLE OF CONTENTS 1 NATURE OF EVIDENCE LAW 9 INTRODUCTION TO THE UNIFORM EVIDENCE ACTS 9 SOURCE OF EVIDENCE LAW: Uniform Evidence Acts 9 Rules in evidence 9 Objective of Evidence Law 10 OVERARCHING CONCEPTS 10 Nature of Court Proceedings 10 Role of Judge and Jury 10 Voir Dire 10 TYPES OF EVIDENCE 11 1) Witness testimony 11 2) Physical objects or exhibits 12 3) Documents 12 CATEGORIES OF EVIDENCE: DIRECT & CIRCUMSTANTIAL 13 1) Direct evidence 13 2) Indirect (circumstantial) evidence 13 Facts that do not need to be proven 13 ADMISSIBILITY OF EVIDENCE 14 Admissible v Inadmissible 14 Fact in issue 14 TEST: Is the evidence admissible? 14 BURDEN OF PROOF 14 Introducing evidence in court 14 Evidential and legal burdens 14 Which party must discharge the evidential burden v legal burden? 15 STANDARD OF PROOF 16 a) Beyond reasonable doubt 17 b) Balance of probabilities 17 MATTERS THAT DO NOT HAVE TO BE PROVED IN COURT 17 OUTLINE OF THE EVIDENCE ACT 18 CHECKLIST: ADMISSIBLE EVIDENCE 19

2 VERBAL EVIDENCE & WITNESSES 20 VERBAL EVIDENCE 20 1) COMPETENCE 20 Practicalities and Criticism 21 2) COMPELLABILITY 21 Minor exceptions 21 Major exceptions 21 1) The accused in criminal proceedings: s 17(2) 21 2) Family members of the accused in criminal proceedings: s 18 24 THE EXAMINATION OF WITNESSES: Order of Examination s 28 25 1) CALLING WITNESS 25 2) OATHS & AFFIRMATIONS 25

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3) EXAMINATION-IN-CHIEF 25 Limitations in Examination-in-chief 25 a) Prohibition against leading questions 26 Unfavourable witness: s 38 26 b) Refreshing a witness’ memory 27 4) CROSS-EXAMINATION 27 Exceptions 27 a) Statements re 3rd party representation 27 b) Improper questions: s 41 28 CROSS-EXAMINATION: Credibility evidence 28 5) RE-EXAMINATION 30 RE-OPENING A CASE 30

3 DOCUMENTARY EVIDENCE & OTHER EVIDENCE 31 TYPES OF EVIDENCE 31 1) ORAL EVIDENCE 31 2) DOCUMENTARY EVIDENCE 31

Commissioner for Railways v Young [1963] HCA 2 32 PROOF OF THE CONTENTS OF DOCUMENTS 33

Butera v Director of Public Prosecution (Vic) [1987] HCA 58 34 Regina v L Cassar; Regina v E Sleiman (Judgement No 17) [1999] NSWSC 436 34

VOLUMINOUS AND COMPLEX DOCUMENTS 36 AUTHENTICATIONS OF DOCUMENTS 36 3) OTHER / REAL EVIDENCE 37 The nature of other evidence 37 Adducing physical evidence and other evidence in the court room 37

4 RELEVANCE 39 ADMISSBILITY OF EVIDENCE 39 Relevance under common law 39

R v Stephenson [1976] VR 376 40 RELEVANCE UNDER THE EVIDENCE ACT 2008 (VIC) 40 Relevant evidence: s 55 40 Relevant evidence to be admissible: s 56 40 1. Fact in issue 41 2. ‘Rationally affect’: Direct and indirect evidence 42

R v Stephenson [1976] VR 376 43 Smith v R [2001] HCA 56 43 R v Goodall (cited in Smith) 43 Patrick v The Queen [2014] VSCA 89 43 Papakosmas v The Queen (1999) 196 CLR 297 44 R v Young [1998] 1 VR 402 44 Evans v The Queen [2007] HCA 59 44 R v Fieldman (Ruling No. 1) [2010] VSC 257 45

WITNESS EXAMINATION 46

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Provisional relevance: s 57 46 Inferences as to relevance: s 58 46 DISCRETIONARY EXCLUSION OF RELEVANT EVIDENCE: s 135 47

5 HEARSAY 49 THE RULE AGAINST HEARSAY EVIDENCE: s 59 49 ELEMENTS 49 1. A previous representation 49 Hearsay can be first-hand or more remote 50 First-hand hearsay 50 Second-hand hearsay 50 2. “To prove a fact” 51

Subramanian v. Public Prosecutor 51 Intentional and unintentional statements: s 59 51

Walton v R 51 TEST: Identifying hearsay evidence 52 EXCEPTIONS TO THE HEARSAY RULE 53 1) EVIDENCE ADMITTED FOR A NON-HEARSAY PURPOSE: s 60 53 Non-hearsay purposes of adducing previous representations 54

R v Gee (2000) 113 A Crim R 376 54 Lee v R (1998) 195 CLR 594 54

2) EXCEPTIONS TO FIRST-HAND HEARSAY: ss 63-66A 55 First-hand hearsay 55 Exceptions to first-hand hearsay 56 a) Criminal proceedings where the maker is unavailable: s 65 56 s 65(2)(a) – Duty to make out-of-court representation 57 s 65(2)(b) – Representations made shortly after fact asserted 57

R v Conway 58 Williams v R (2000) 119 A Crim 490 58

s 65(2)(c) – Reliable representation 59 R v Mankotia 59

s 65(2)(d) – Admissions 60 ss 65(3)-(6) – Previous proceedings 60 ss 65(8)-(9) – Representations Adduced by the Accused 60 b) Criminal proceedings where the maker is available: s 66 61 ‘Fresh in the memory’ 61

Graham v R (1998) 195 CLR 606 61 c) Civil proceedings where the maker is unavailable: s 63 62 d) Civil proceedings where the maker is available: s 64 63 e) Contemporaneous statements about a person’s health: s 66A 63

R v Lock (1997) 91 A Crim R356 63 R v Serratore (1999) 48 NSWLR 101 63 R v Van Dyk [2000] NSWCCA 67 64

NOTICE REQUIREMENTS: s 67 64 3) EXCEPTIONS TO REMOTE / SECOND-HAND HEARSAY: ss 69-75 65

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s 69 – Business records 65 s 70 – Tags, Labels and Writing 65 s 71 – Electronic Communications 66 s 72 – Traditional Laws and Custom 66 s 73 – Relationships and Age 66 s 74 – Public or General Rights 66 s 75 – Interlocutory Proceedings 66 EXCEPTION: ADMISSIONS: s 81 67

6 ADMISSIONS 68 ADMISSIONS 68 What is an admission? 68 Admission as an exception to hearsay and opinion rules: s 81 69 EXCLUSION OF CERTAIN ADMISSIONS 69 Exclusions of evidence of admissions that are not first-hand: s 82 69

Lee v The Queen [1998] HCA 60 69 Admissions not admissible as against third parties: s 83 70 Admissions influenced by violence and other conduct: s 84 70

R v Ye Zhang [2002] NSWSC 1099 70 Higgins v R 70

The meaning of ‘influence’ 71 ‘Oppressive conduct’ 71 Admissions by criminal defendants in the presence of investigators: s 85 71

Kelly v The Queen (2004) 218 CLR 216 71 R v Donnelly (1997) 96 A Crim R 432 72

Exclusion of records of oral questioning and mandatory electronic recording of admissions: s 86 72 EVIDENCE OF SILENCE: s 89 73 Selective answering 73

R v Barrett [2007] VSCA 95 73 Failure to mention a defence later relied on: Sanchez v R 73 DISCRETIONARY EXCLUSION OF ADMISSIONS: s 90 74

Em v R 74

7 OPINION EVIDENCE 75 Difference between facts and opinion 75 Difference between observation and opinion 75

Lithgow City Council v Jackson [2011] HCA 75 THE OPINION RULE: s 76 76 EXCEPTIONS TO THE OPINION RULE 76 EVIDENCE RELEVANT OTHERWISE THAN AS OPINION EVIDENCE: s 77 76 LAY OPINIONS: s 78 76

Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 77 R v Whyte [2006] NSWCCA 75 77

TRADITIONAL LAWS AND CUSTOMS: s 78A 78 EXPERT WITNESSES: s 79 78

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Requirements of s 79 78 i. Specialised knowledge 79

R v Tang [2006] NSWCCA 79 R v Quesada [2001] NSWCCA 216 80

Evidence of opinion based on specialised knowledge relating to children 80 Common law ‘basis rule’ 81 ii. Training, study or experience 81 iii. Wholly or substantially based on specialised knowledge 81 Criticism of expert opinion rule 82 Examples of expert opinion 82

Funnel-web spider bite causing “acute brain syndrome” case – R v Spiers 82 ‘Sleep Sex’ and the defence of automatism case – R v Spencer 82 Comtaminated DNA evidence case – R v Jama 83

COMMON LAW EXPERT EVIDENCE RULES 83 ‘Ultimate issue’ rule 83 ‘Common knowledge’ rule 83 DISCRETIONARY EXCLUSION 84 OTHER OPINION RULE EXCEPTIONS 84 Special case 1: Competence 84 Special case 2: Credibility 84

8 TENDENCY & COINCIDENCE EVIDENCE 86 THE RULE AGAINST TENDENCY AND COINCIDENCE EVIDENCE 86 COMMON LAW 86

Pfennig v R (1995) 182 CLR 461 86 R v Ellis [2003] NSWCCA 319 87

EVIDENCE ACT 88 THE TENDENCY RULE: s 97 88 THE COINCIDENCE RULE: s 98 88 Negatives of tendency reasoning 89 THE TENDENCY RULE: s 97 89 THE COINCIDENDE RULE: s 98 89 THE ‘PURPOSE’ TEST 90 Evidence that may NOT be tendency evidence or coincidence evidence 90 ADMISSIBILITY OF TENDENCY & COINCIDENCE EVIDENCE 91

R v Ellis [2003] NSWCCA 91 1. NOTICE REQUIREMENTS 91 ‘Reasonable’ notice requirements 91 2. ‘SIGNIFICANT PROBATIVE VALUE’ 91

GBF v The Queen [2010] VSCA 135 92 How to assess probative value 93 Relevant factors when assessing probative value 93 Alternative explanation for conduct 94 Concoction and contamination 94

KRI v The Queen [2011] VSCA 127 94

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ADDITIONAL CONSIDERATIONS 95 Similarity as a basis for probative value of coincidence evidence 95

Quarrell v The Queen [2011] VSCA 125 95 CW v The Queen [2010] VSCA 288 95 P N J v DPP [2010] VSCA 88 96

Tendency or coincidence evidence about an accused: s 101 97 Section 137 (discretion to exclude evidence): Whether evidence is ‘reliable’ 97 Section 55: Relevance 97 Section 94: Application of Part 3.6 98 Section 95: Use of evidence for other purposes 98

Hughes v R [2017] HCA 20 98

9 CREDIBILITY & CHARACTER EVIDENCE 99 Credibility vs Character evidence 99 CREDIBILITY EVIDENCE: DEFINITION 100

Adam v The Queen [2001] HCA 57 100 ‘THE CREDIBILITY RULE’: s 102 101 EXCEPTIONS TO THE CREDIBILITY RULE 101 1. EVIDENCE ADDUCED IN CROSS-EXAMINATION: ss 103 and 104 101 The accused 101 ‘Evidence that could substantially affect the assessment of the credibility of the witness’: s 103 102 The accused and credibility evidence: s 104 102

R v El-Azzi [2004] NSWCCA 455 104 2. THE FINALITY RULE: s 106 106 3. RE-ESTABLISHING CREDIBILITY: s 108 107

R v MDB [2005] NSWCCA 354 107 4. GOOD CHARACTER EVIDENCE OF THE ACCUSED: s 110 108 Protection of complaints in sexual offence cases 109 5. CREDIBILITY OF NON-WITNESSES: ss 108A and 108B 109 6. SPECIALISED KNOWLEDGE: s 108C 111 THE USE OF CREDIBILITY EVIDENCE IN COURT 111 Witness examination 111 Tactical decisions 112

10 PRIVILEGE 113 TYPES OF PRIVILEGE 113 1. CLIENT LEGAL PRIVILEGE: ss 117-126 114

Tuckiar v The King (1934) 52 CLR 335 114 Rationale behind client legal privilege 114 Ethical dilemmas 114

The People v. Belge, 372 N.Y.S.2d 798 115 Representing the guilty: The Australian Bar Association Model Rules 115 Section 131A 116

Baker v Campbell (1983) 153 CLR 52 116 DEFINITIONS: s 117 117

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LEGAL ADVICE: s 118 119 Copies of documents 120 Dominant Purpose Test 120 LITIGATION: s 119 120 LOSS OF CLIENT PRIVILEGE: s 121 121 ACCUSED IN A CRIMINAL PROCEEDING: s 123 121 MISCONDUCT: s 125 122 Commission of a crime: s 125(1)(a) 122 Abuse of power: s 125(1)(b) 123

Attorney-General (NT) v Kearney [1985] HCA 60 123 CONSENT: s 122 123 Inconsistent behaviour: s 122(3) 124

Mann v Carnell (1999) HCA 66 124 Osland v Secretary to the Department of Justice [2008] HCA 37 124 Divall v Mifsud [2005] NSWCA 447 125

2. RELIGIOUS CONFESSIONS: s 127 126 3. JOURNALIST PRIVILEGE: s 126K 126 Public interest exception: s 126K 127 4. PRIVILEGE AGAINST SELF-INCRIMINATION: s 128 127 Privilege against self-incrimination vs right to remain silent 128 Reasonable grounds: s 128(2) 128 Certificates: s 128 128

In the Marriage of Atkinson (1997) 136 FLR 347 129 Right to object to answering incriminating question: s 132 129 5. MATTERS OF STATE: s 130 129

Sankey v Whitlam (1978) 142 CLR 1 130 Alister v R ("Hilton Bombing case") [1984] HCA 85 131

6. PRIVILEGE RE SETTLEMENT NEGOTIATIONS: s 131 132

11 DISCRETIONS 133 MANDATORY AND DISCRETIONARY EXCLUSIONS 133 1. MANDATORY EXCLUSIONS 134 Section 137 – Exclusion of prejudicial evidence in criminal proceedings 135 2. DISCRETIONARY EXCLUSIONS 134 Section 135 – General discretion to exclude evidence 134

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 5) [2011] VSC 295 134 Section 136 – General discretion to limit use of evidence 134 Section 138 – Exclusion of improperly or illegally obtained evidence 136

Robinson v Woolworths Ltd [2005] NSWCCA 426 136 Section 165(1)(d) – Warnings 137

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1 NATURE OF EVIDENCE LAW INTRODUCTION TO THE UNIFORM EVIDENCE ACTS Evidence law = The rules that define the type of information that can and cannot be received by a decision maker (whether a judge alone or member of the jury) to resolve disputes about facts in civil and criminal proceedings. • Is not substantive — Does not create legal rights or duties • Is procedural —

o Sets out the process by which substantive legal issues are determined o Ensures that substantive law achieves accurate results

Hence, • Information that can be received = admissible • Information that is excluded = inadmissible

SOURCE OF EVIDENCE LAW: Uniform Evidence Acts 1) Evidence Act 2008 (Vic) Based on NSW & Federal legislation (Uniform Evidence Act 1995 (Cth)) • Act has been adopted in seven jurisdictions • Applies to:

o Jury trials o Non-jury trials o Criminal proceedings o Civil proceedings

2) Common Law Rules 3) Case law = interpretation and clarification of statute

Note: Still similarities between statute and common law evidence law

• The legislation extinguishes most of the common law rules with the goal of uniform evidentiary rules in all state, territorial and federal courts.

• The Evidence Acts are a work in progress. o As with all legislation there have been occasions when the provisions are unclear and as a result there is an emerging

body of case law that attempts to clarify the meaning and operation of the Act.

o There is a rapidly expanding body of Victorian cases that deal with provisions of the Evidence Act since it began operating in 2010.

• Some sections of the Evidence Act are straightforward whilst others are diabolical. o Consider section 62 as an example. It is perhaps the most poorly drafted provision ever seen. It attempts to define first

hand hearsay – It is an unnecessarily complex definition of what is essentially a simple concept: first hand hearsay. Rules in evidence There are two types of rules in evidence — 1) Rules regulating matters of processing concerning how evidence can be given + who can give the

evidence 2) Rules prescribing what sort of information can be received by the courts to resolve issues in dispute

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Objective of Evidence Law Truth • Objective of the law of evidence is to ascertain the truth Discipline • To ensure that wrongly obtained evidence is excluded • To discourage law enforcement officers from adopting inappropriate practices in the detection and

investigation of a crime • Arguably flawed:

o Police officer suffers no tangible detriment o May be displeased that case has been weakened but will not be punished

Protection • To ensure that the parties to litigation are treated fairly and protected from possible prejudices

o E.g. the rules prohibiting the admission of prior criminal convictions

Reasons to restrict proof = To increase the accuracy and speed of the legal process

OVERARCHING CONCEPTS Nature of Court Proceedings Criminal proceedings — Brought by the state against an individual who is suspected of committing a crime Civil proceedings — Brought by an aggrieved party against a party it claims has committed a legal wrong Role of Judge and Jury Re jury — Lower courts — No jury; Magistrate/judge only Higher courts — Usually have a jury • Criminal matters — Jury consists of 12 people • Civil matters — Jury consists of four to six people Role of judge — • Summarises arguments and explains the relevant law to the jury at the end of the trial (known as the

charge to the jury) • Directs the jury on how to conduct its fact finding function Voir Dire • When a dispute about a question of law arises during the course of a proceedings that dispute is heard

and determine separated from the main trial • The hearing that is conducted in relation to the matter is called a Voir Dire • During Voir Dire parties are entitled to:

o Call, cross-examine or re-examine witnesses o Make legal submissions

• Occurs in the absence of the jury to prevent exposing them to potentially inadmissible evidence • Governed by s 189 UEA

(cont’d next page)

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• Decision to grant a Voir Dire: o Matter of discretion o Not a right o Party seeking must first satisfy the Judge or Magistrate that there are reasonable grounds o Counsel must identify the issues to which it is directed: DPP (NSW) v Zhang [2007]

TYPES OF EVIDENCE The Evidence Act deals with three types of evidence that can be adduced in court: 1) Witness testimony 2) Physical objects or exhibits 3) Documents 1) Witness testimony

• In-court testimony given by a person • Usually called oral evidence, or viva voce (testimony = American usage) • Most problematic form of evidence because it is based on memory and perceptions of a human

being o Human beings are bizarre, unpredictable, fallible and potentially dishonest o When you examine a witness you never know exactly what will come out of his or her mouth

- particularly during cross-examination.

Evidence that the witness gives will fall into one of three types: a) Honest evidence b) Dishonest evidence c) Honest but mistaken evidence

Still no solid way to test the type of evidence:

• Working out what type of evidence is being given is in part derived from the person giving the evidence.

• Facial micro expressions, polygraph tests and brain fingerprinting are not accepted by the courts as being conclusive techniques that detect dishonesty in a person.

• The fact is that people do lie despite taking an oath – If they did not, the offence of perjury would be unnecessary.

• What to believe and what not to believe is the function of the jury or judge/magistrate depending on the type of hearing.

Hence, cross-examination = main tool for discovery of facts + work out what type of evidence is being given (honest, dishonest or honest but mistaken)

• Cross-examination is about testing a witness – not only for honesty but for accuracy (both fall within the concept of ‘reliability’).

o If a witness is lying or mistaken, then it will be desirable (and theoretically possible) to expose this by way of cross-examination.

o The assessment of a witness in terms of his or her reliability will be heavily influenced by their performance under cross-examination.

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• John Henry Wigmore, the original author of the leading American text on evidence, wrote: “Cross-examination is the greatest legal engine ever invented for the discovery of truth.”

o However, that comes with an important qualification: “You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it.”

Despite the problems with witnesses, their evidence is still usually the most important evidence in most cases.

2) Physical objects or exhibits

Note: this unit will not focus on this type of evidence • Often referred to as real evidence

• There is a large array of potentially relevant items recovered from a crime scene or accident scene that might be used (adduced) as evidence in a trial. E.g. –

o A murder weapon such as a rifle that is owned by the accused;

o A serum sample such as blood or saliva recovered from the crime scene; o A glass cup from which a fingerprint is collected.

• In most cases, if not all, exhibits will be treated as circumstantial evidence. • Exhibits from a crime scene will usually do no more than create suspicious circumstances. • It is possible that an innocent explanation will account for the physical evidence collected from a crime

scene. E.g. – o The accused might be the registered owner of the rifle used to murder the victim but that alone does not reveal that

they are guilty. o A fingerprint recovered from the crime scene that belongs to the accused will place them at the crime scene - but alone

it is not enough to find a guilty verdict. o Perhaps the accused installed insulation in the roof of the victim’s house shortly before the victim was murdered and

accepted a drink before leaving. 3) Documents

Note: this unit will not focus on this type of evidence 1) Letters, contracts and emails 2) Documents are a very common source of evidence, particularly in commercial litigation

1) E.g. In fraud and tax evasion cases there can be a very large number of documents that will be admitted as evidence. 3) A ‘document’ might include:

1) An airline ticket that is introduced to support an alibi. 2) A sales receipt for a large quantity of potassium or nitric acid (ingredients that can be used to make a bomb) 3) Phone records/Letters/Emails 4) Diary/Journal

4) Note: the presence of online transactional databases leads to an enormous amount of information being generated from online transactions – This is becoming a very common source of documentary evidence.

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CATEGORIES OF EVIDENCE: DIRECT & CIRCUMSTANTIAL There are two broad categories of evidence: 1) Direct evidence 2) Indirect (circumstantial) evidence 1) Direct evidence

Evidence that directly links the defendant to the crime • Does not involve any inference of implications 2) Indirect (circumstantial) evidence

Evidence which lacks a link: Corey Travis Fuller-Lyons v The State of NSW (HCA, 2015) • Requires the drawing of an inference from one fact to another

o As normally more than one possible explanation of the evidence • Expert testimony often relied upon to establish said link

Indirect evidence is then sub-divided into two further categories — a) Strands in a cable case

• Where there is an accumulation of circumstantial evidence which operates cumulatively • Prosecution does not need to establish each item of evidence beyond reasonable doubt

b) Links in a chain case • Where evidence operates sequentially / by sequential reasoning • If case is sequential and there is no other evidence in support of the relevant fact, then the

indispensable links must be proven beyond reasonable doubt Facts that do not need to be proven

• There are some matters that a court will assume are correct and true and hence evidence is not required for their proof

• Known as matters of common knowledge

• Governed by s 144 UEA

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ADMISSIBILITY OF EVIDENCE Admissible v Inadmissible • Information that can be received = admissible • Information that is excluded = inadmissible Fact in issue • Evidence is admissible only if it is relevant to a fact in issue in the proceedings • Fact in issue is a matter that must be proved for a party to either establish or rebut an element of a charge

or a cause of action in the proceedings • Facts in issue are determined by the substantive law and the pleadings TEST: Is the evidence admissible? • Is the witness competent? (Yes) • Is the evidence relevant? (Yes) • Does the evidence violate an exclusionary rule? (No) • Does the evidence satisfy the discretion of the trial judge? (Yes) If the evidence survives all four tests, it will be admitted. BURDEN OF PROOF Note: The burden of proof is regulated by common law principles. Burden of proof = the rule that sets out which party in a court case has the onus of proving a matter General rule = The party asserting a claim / allegation must provide relevant evidence that supports / proves it. Introducing evidence in court Who is obligated to introduce evidence in court? • Prosecutor or accused (criminal cases)

o It is usually the prosecutor unless the defence has an independent argument – in such a case, the defence needs to bring evidence to support that argument

• Plaintiff or defendant (civil cases) Evidential and legal burdens The burden of proof gives rise to two questions: 1) Is there sufficient evidence to make out a case (evidential burden)? 2) Does the evidence yield a persuasive argument to prove the case (legal burden)? 1) Evidential burden – the sufficiency of evidence introduced to prove a claim • Level of proof that must be established in order for the relevant issue to be left to a jury • Prosecution/defendant must produce sufficient evidence before a jury or judge may consider it

• Fact-finder must look at the volume and weight of evidence (witnesses, documents and exhibits) and decide whether there is enough.

• In a criminal trial, after the prosecution has finished presenting its evidence, the defence may make a ‘no case’ submission.

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o The submission must be decided by the judge – If the judge finds that the prosecution has adduced insufficient evidence then the case is over.

o It does not happen often but if it does it is a source of embarrassment for the prosecutor.

• If evidence is insufficient then there is no need for jury or judge to reach verdict 2) Legal / ultimate burden (standard of proof) – the persuasiveness of the evidence Whilst the evidential burden is reasonably straightforward, the legal burden is more difficult to understand – • This is the level of persuasion that evidence adduced by a party must reach in order for it to succeed

in its case • Only arises once the evidential burden has been satisfied • Governed by the standard of proof • The legal burden is to be decided by the jury or judge if there is no jury. • Very closely connected to the closing address that each party delivers at the end of the trial after all the

evidence has been presented. o It is during a closing address that the prosecution will arrive at a conclusion that is based on the evidence that it has

presented. This is an argument; a conclusion that is supported by evidence or reasons. o In their closing argument the prosecution will review the evidence and tell the jury that it leads to one conclusion: the

accused is guilty.

• The jury will listen to the prosecution’s argument and decide whether it is persuasive. If it is persuasive they will accept it, if not they will reject it.

Which party must discharge the evidential burden v legal burden? Prosecution • In criminal proceedings it is usually the prosecution that must discharge the evidential burden in

relation to the facts in issue they have alleged and discharge the legal burden. • Once the prosecution has satisfied the evidential burden by adducing sufficient evidence and the

defence finishes presenting its case if they choose to do so the judge will allow the evidence to be considered by the jury.

• The jury will decide whether or not the legal burden has been satisfied by the prosecution. o If they decide that the prosecution's argument (accused is guilty) and evidence is persuasive

they will arrive at a guilty verdict. Note: • the juries are not left to their own devices in the persuasiveness enquiry. (see standard of proof) • There is overlap between the legal burden of proof and the standard of proof. The prosecution's argument (accused is guilty) is persuasive in a criminal context if it proves the case beyond a reasonable doubt. Defence General rule = the defence does not have to prove anything. • A fundamental assumption in the criminal justice system is that the accused is innocent unless the

prosecution can prove otherwise. An innocent person does not need to prove anything in a criminal trial. Where defendant bears evidential and/or legal burden A defendant in criminal proceedings might bear an evidential burden or both an evidential burden and a legal burden where defence if the accused pleads insanity or if they raise a defence such as self-defence or provocation. • If a defendant pleads not guilty by reason of insanity then their sanity will be a fact in issue or a

disputable fact – The evidential burden and legal burden shifts to the defendant.

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• If, however, in response to a criminal charge an accused argues a defence (self-defence, provocation or duress), then the evidential burden must be satisfied by the defendant.

o However there is no legal burden upon them. Here the legal burden is not upon the defendant, it is upon the prosecution.

Example: John is charged with murder and at his trial he claims that he was acting in self-defence. John must introduce evidence to support his claim that he was acting in self-defence in order to satisfy the evidential burden of proof. If John does not satisfy the evidential burden then the jury will not consider his self-defence claim in their deliberations. If he does satisfy the evidential burden then the legal burden will be upon the prosecution.

• Where the evidential burden is on the accused but the legal burden is on the prosecution, the prosecution will have to convince the jury that the evidence is not persuasive.

o For example, the prosecutor might make the following statement during their closing address: “The evidence introduced by the accused cannot lead to the conclusion the he was acting in self-defence, for the following reasons...”

Civil proceedings Note: not examinable In civil proceedings the evidential and legal burden will be upon the party making a claim, which will be the plaintiff or the party making a defence (the defendant). STANDARD OF PROOF An argument about a fact in issue is considered persuasive if it satisfies the standard of proof: Evidence Act ss 140-142. The burden of proof determines who bears the responsibility for proving an allegation. The standard of proof provides jurors with a guideline that is supposed to help them determine if an allegation has been proven. Note: There is an overlap between the standard of proof and the legal burden - An argument about a fact in issue is considered persuasive if it satisfies the standard of proof. Criminal Proceedings: s 141 a) “Beyond reasonable doubt“ is the standard of proof for the prosecution

o Must prove every element of the offence / charge (that is the essential facts that go to make up the charge)

o Must disprove the existence of each defence b) “Balance of probabilities” is the standard of proof for the defence: s 141

o Note: Rare that accused will carry the burden in criminal case Civil proceedings: s 140 • “Balance of probabilities” is the standard of proof for both the prosecution and the defence: s 142 • Greater than 50% satisfaction • Where accusations are serious courts have held that there is a need for greater scrutiny Note: It is an error of law to apply the civil standard of proof in a criminal case or the criminal standard of proof in a civil case: Reifek v McElroy [1965] HCA 46; Helton v Allen [1940] HCA 20

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a) Beyond reasonable doubt • This is the highest standard of proof in the legal system • In order for the prosecution to establish guilt, it must prove every element of the offence and disprove

every defence raised by the accused beyond reasonable doubt • Where the case is one based on circumstantial evidence: the judge can instruct the jury that guilt should

only be a rational conclusion (i.e. ask the juror to think whether there could be any other reasonably possible explanation: Henry Keogh murder trial)

Hence, in a criminal trial the jury must decide: Has the Crown proved the guilt of the accused beyond reasonable doubt? – If the answer is “yes”, the appropriate verdict is “guilty”. If the answer is “no”, the verdict must be “not guilty”. Re the phrase “beyond reasonable doubt” – How certain should one be to satisfy the “beyond reasonable doubt” standard? 70%? 80%? Common law position:

• Except in certain limited circumstances, no attempt should be made to explain or embellish the meaning of the phrase “beyond reasonable doubt”: Green v The Queen (1971) 126 CLR 28 at 32–33; La Fontaine v R (1976) 136 CLR 62 at 71; R v Reeves (1992) 29 NSWLR 109 at 117; Raso v R [2008] NSWCCA 120 at [20].

• However, pursuant to section 64 of the Jury Directions Act 2015 (Vic), Judges now have the power to elaborate somewhat on this difficult question. o If so asked by a jury, a Judge can properly instruct a jury that “an imaginary or fanciful doubt or an

unreal possibility is not a ‘reasonable doubt’”: s 64 Jury Directions Act 2015 (Vic) o See also at common law: Green v The Queen at 33; or as put in Keil v The Queen (1979) 53 ALJR

525, “fanciful doubts are not reasonable doubts” • The question of whether there is a reasonable doubt is a subjective one to be determined by each

individual juror: Green v The Queen at 32–33; R v Southammavong [2003] NSWCCA 312 at [28]. • Newman J said in R v GWB [2000] NSWCCA 410:

o “The words ‘beyond reasonable doubt’ are ordinary everyday words and that is how you should understand them”: at [23].

o “judges should not depart from the time honoured formula that the words ‘beyond reasonable doubt’ are words in the ordinary English usage and mean exactly what they say.” At [44]

• A Judge can also adapt his or her explanation of the phrase "proof beyond reasonable doubt" in order to respond to the particular question asked by the jury: section 64 of the Jury Directions Act 2015 (Vic).

b) Balance of probabilities For this to be satisfied, it must be shown that a fact is more likely to have occurred than not, i.e. that there is a >50% possibility of the fact having occurred. • Where an issue in a case relates to the admissibility of the evidence rather than an element of the offence

or cause of action, then the facts that are relevant to the determination of these issues need only be proven on the balance of probabilities: s 142

MATTERS THAT DO NOT HAVE TO BE PROVED IN COURT Matters of common knowledge: s 144 – i.e. facts which are not reasonably open to question Matters of law: s 143 – laws, regulations, proclamations, orders.

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OUTLINE OF THE EVIDENCE ACT The Evidence Act, which is a collection of rules, has a fairly simple outline that is easy to remember. The individual rules can be complex, however, the overall scheme of the act is not. The Act creates three stages that any item of evidence (witness, exhibit or document) must survive before it can be admitted. If an item of evidence fails to survive a single stage it will be excluded. 1) The evidence must be relevant to an

issue at trial: s 56 2) The evidence must not be excluded by

any exclusionary rules; and 3) The evidence must satisfy the

discretion of the trial judge: s 135 (see Relevance topic) If the evidence survives all the stages, it will be admitted. A simple diagram that represents the 3 stages can be drafted as follows: ———> Note: Use the above and below diagrams as a guide when answering problem questions — will have to decide whether an item of evidence is admissible or not. A complete answer would recognise that all three stages must be satisfied as opposed to focusing exclusively on a single exclusionary rule and overlooking the requirement of relevance and discretion. If relevance and trial discretion are not the focus of the question you need only mention the requirements in passing. In most problems that we look at the question will focus on the exclusionary rule. A more detailed diagram appears in the Act itself.

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CHECKLIST: ADMISSIBLE EVIDENCE

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2 VERBAL EVIDENCE & WITNESSES VERBAL EVIDENCE Most common form of evidence = verbal evidence Process by which person is compelled to attend court: • Subpoena (document stamped by relevant court) is served upon the individual • It sets out the relevant court matter and date that they are required to attend • Often will give an interview and sign a statement detailing their account before attending • If don’t attend can be charged with contempt of court • When they attend they are classified as a witness In order to adduce evidence from a witness, they must be both competent and compellable. Competence – who is qualified to give evidence in court Compellability – who can be forced to give evidence in court

12 Competence and compellability Except as otherwise provided by this Act— (a) every person is competent to give evidence; and (b) a person who is competent to give evidence about a fact is compellable to give that evidence.

1) COMPETENCE Competence focuses on who is qualified to give evidence in court. General rule = unless otherwise provided for in the Act, all individuals are competent: s 12(a) Exception = A person who is not competent to give sworn evidence may give unsworn evidence: s 13 Section 13 excludes two categories of people: young people and the mentally impaired: Section 13(1) (general provision) – A person is not competent to give evidence (sworn or unsworn) if they do not have the capacity to: • understand a question; or • give an answer that can be understood; and • this incapacity cannot be overcome

o example: age, mental impairment, physical impairment etc Section 13(2) – A person who is not competent to give evidence about some facts can give evidence about other facts (e.g. a child witness to arson...) Section 13(3): Sworn evidence – A person is not competent to give sworn evidence if they do not understand that they are under an obligation to tell the truth Section 13(4): Unsworn evidence – A person who is not competent to give sworn evidence can give unsworn evidence Section 13(5): Unsworn evidence – A person can give unsworn evidence if the court has told them: (a) it is important to tell the truth; (b) they will be asked questions that they know, do not know, or cannot remember, and they should answer

accordingly; (c) they may be asked questions that are true or untrue, and they should agree with the statements they

believe are true, and they should not feel pressured to agree with the statements they believe are not true