Elements of Evidence Law PDF

Preview

Summary

Elements of Evidence Law...

Description

Nick Dowse

Elements of Evidence

Elements of Evidence – Structure of Answer 1. The process when answering an evidence question is: a. Identify the facts in issue i. What needs to be proved to show the guilt/fault of the party charged (called ‘main facts in issue’) ii. The main facts in issue are determined by the substantive law of the case, for example: 1. Contract: offer, acceptance, intention to create legal relations, consideration, capacity, certainty, etc… 2. Tort: negligence: duty, breach, damage 3. Criminal law: elements of offence in Criminal Code. iii. Main facts in issue must be proved by the prosecution (or the plaintiff in a civil case) iv. The collateral facts in issue are those facts that will help win the case, but that are not from the substantive law. v. The three types of collateral facts in issue are those that: 1. Affect the credibility of the witness; 2. Affect the admissibility of evidence; 3. Determine the way judicial discretion will be exercised. vi. Collateral facts in issue are governed by the rules of evidence, not the substantive law. b. Identify the pieces of evidence available to prove the facts in issue i. Direct evidence 1. Testimony a. Competence and compellability i. Interpreters, children, vulnerable witnesses b. Refreshment of memory from documents c. Prior consistent or inconsistent statements d. Hearsay i. Exceptions to hearsay e. Admissions and confessions f. Expert witnesses g. Opinion evidence 2. Documents a. Hearsay i. Exceptions to hearsay b. Proof of execution, handwriting, attestation 3. Objects a. Called “real evidence” b. Photos, videos, murder weapon etc 4. Places a. Views b. Demonstrations c. Experiments ii. Circumstantial evidence 1. Motive, opportunity, habit, conduct 2. Propensity, similar fact evidence iii. Collateral facts 1. Credibility of witness, admissibility of evidence, judicial discretion c. Is the piece of evidence sufficiently relevant? i. To be admitted into evidence, must be sufficiently relevant. d. Is the piece of evidence admissible? i. If it is caught by an exclusionary rule, it will not be received into evidence. Page 1 of 5

Nick Dowse

Elements of Evidence

ii. If prima face admissible, or is inadmissible but caught by an inclusionary rule, it may be received into evidence. e. Judicial discretion i. Should the judge exercise discretion to exclude the otherwise admissible evidence on the basis of fairness or public policy? 1. See “Judicial Discretion” notes. 2. Main Facts in Issue a. The main facts in issue are the facts that the plaintiff/prosecution must prove to succeed, as determined by the relevant substantive law. b. The main facts in issue will also include facts required to establish defences or excuses. c. Elements of murder (s 302(1) CC) i. Unlawful killing (s 291); and 1. Means not authorised, justified or excused by law ii. Intention to cause death or GBH required (s 302(1)(a)). 3. Collateral Facts in Issue a. Collateral facts in issue are those which relate to: i. Credibility ii. Admissibility iii. Whether judicial discretion will be exercised. b. Collateral facts in issue do not need to be proved to succeed. 4. Burden and Standard of Proof a. The burden, or onus, of proof is the responsibility of a party to introduce evidence in support of his or her case. The goal is to persuade the tribunal of fact that the main facts in issue are established. b. The “legal burden” of proof is that which requires the proponent of a substantive issue to prove it, or lose the case. c. The “evidential burden” of proof is the obligation of a party faced with a legal burden to adduce evidence to discharge the legal burden. d. The evidential burden follows the legal burden. e. Criminal Case i. Legal and evidential burden on prosecution to prove offences BRD, and on accused to raise defences on the BOP (or, with excuses, to raise some credible evidence) and then on the prosecution to negative them BRD. ii. Viscount Sankey in Wollington: “golden thread in criminal law means that an accused does not need to prove their innocence, but rather the prosecution must prove offences beyond reasonable doubt.” iii. However, there is a de facto evidential burden on the accused when they raise evidence of an defence/excuse 1. Insanity (defence) a. The defence of insanity (s 27 Criminal Code) lays down a presumption of sanity in s 26 Criminal Code which reflects the requirement that the accused prove his own sanity in rebuttal of the presumption that they were of sound mind at the time of the offence (McNaghten; R v Porter). Because there is a presumption of sanity, the legal burden will therefore be on the accused to prove the elements to the defence of insanity. 2. Intoxication (defence) a. The defence of intoxication (s 28 Criminal Code) provides that s 27 (insanity) applies to case of a person who has not intentionally caused him/herself to become intoxicated. Like insanity, the legal burden will be on the accused to prove the elements of the defence of intoxication in s 28. 3. Intoxication (excuse) Page 2 of 5

Nick Dowse

Elements of Evidence

a. The excuse of “intoxicated, no intent” in s 28(3) is an excuse. Once the defence raises the excuse of act independent of will, the burden is on the Crown to negative it beyond reasonable doubt – the legal burden never shifts. 4. Diminished responsibility (defence) a. Section 304A(1) Criminal Code provides a defence that has the effect of reducing a murder charge to one of manslaughter in the case of an accused proved to be suffering from an ‘abnormality of mind’. Subsection (2) provides that ‘… it shall be for the defence to prove that the person charged is by virtue of this section liable to be convicted of manslaughter only’. Therefore, the legal burden is on the accused to prove that diminished responsibility applies. 5. Lawful possession of a dangerous drug (defence) a. Section 124 Drugs Misuse Act 1986 (Qld) provides a defence to a charge of possessing certain kinds of unlawful drugs when they acquired the substance in question by means of a lawful prescription, and certain other prescribed conditions are met. The legal burden is placed on the accused to prove the facts which establish this defence. 6. Act independent of will (excuse) a. There is no de facto burden on the accused in relation to acts independent of will under s 23(1)(a). Once the defence raises the excuse of act independent of will, the burden is on the Crown to negative it beyond reasonable doubt – the legal burden never shifts. 7. Accident (excuse) a. There is no de facto burden on the accused in relation to accident under s 23(1)(b). Once the defence raises the excuse of accident, the burden is on the Crown to negative it beyond reasonable doubt – the legal burden never shifts. 8. Self-defence (excuse) a. There is no de facto burden on the accused in relation to self-defence (s 271 & 272). If the defence raises the excuse of self-defence, the burden is on the Crown to negative it beyond reasonable doubt. 9. Mistake of fact a. There is no de facto burden on the accused in relation to mistake of fact (s 24). Once defence raises excuse of mistake of fact, burden is on Crown to negative BRD – legal burden never shifts. iv. NOTE: what often happens in adversarial systems is that the prosecution will adduce enough evidence to make the jury think “the defendant better explain all of this away, because it’s all pretty compelling otherwise…” So even though there’s no strict legal requirement for the defence to prove anything, once the evidence seems to “call for an answer” the defendant is at risk if he does not try to provide an answer (Wollington). f. Civil case i. Plaintiff and defendant to prove BOP. g. There will be occasions where the judge, having heard all the evidence, will say as a matter of law that the evidence is not sufficient to convict the accused – that is, the evidence does not make out a prima facie case. i. If so, the judge will withdraw the matter from the jury (Doney) and direct them to enter a verdict for the accused. 5. Relevance a. All evidence sufficiently relevant to a fact in issue is prima facie admissible. b. All evidence that is not sufficiently relevant is not admissible. c. A piece of evidence is relevant when: Page 3 of 5

Nick Dowse

6.

7.

8. 9.

Elements of Evidence

i. Any two facts are so related to each other that, according to the course of human experience, one fact indicates the likelihood of the existence of the other fact d. A fact is relevant if it can be linked to a main fact in issue or a collateral fact in issue. e. Relevance is a question of law for the judge. f. Apply. Admissibility a. Evidence is capable of being received by a court where it is: i. Relevant to a main or collateral fact in issue; and ii. Not in breach of an exclusionary rule (question of law). b. If evidence is admissible for one purpose, but inadmissible on another ground: i. The evidence can still be received by the court; but ii. It can only be used for the purpose for which it is admissible, and not the other (Walton). iii. There must be a clear direction by the judge to the jury as to the use of the evidence (Walton). iv. Case example: Walton 1. Man shot wife in head. 2. Neighbours heard her say “you are just trying to kill me for my money” 3. Held: inadmissible to prove intent to kill because it is hearsay. However, admissible to show nature of their relationship. c. Admissibility is a question of law for the judge. Weight a. The weight given to evidence refers to its persuasive value. b. This is a question of fact for the tribunal of fact. c. There are two considerations: i. Should a person’s evidence be treated as accurate? 1. This depends on assessment of credibility - whether there has been a deliberate misrepresentation of facts or mistaken (assessment of accuracy of powers of perception of witness and his/her ability to both recall and recount what he/she perceived) ii. If so, how far does it go to help decide the issues in the case? d. Regard is to be had to all the circumstances from which an inference can reasonably be drawn as to accuracy or otherwise, including: i. Whether statement contemporaneously recorded at time it occurred (s 102(a) QEA) ii. Whether any incentive to conceal or misrepresent the facts (s 102(b) QEA). Discretion a. See “Judicial Discretion” notes. Voir Dire a. Mini-trial within a trial b. Jury absent c. Hear legal submissions from counsel i. Evidence of collateral facts ii. Determine whether witness is hostile iii. Admissibility of evidence iv. Whether witness has the required expertise to be an expert witness v. Whether judicial discretion should be exercised vi. Whether confession made voluntarily d. Burden of proof on the party seeking admissibility/exercise of discretion i. Standard = BOP e. Both parties can call witnesses f. Relevance, admissibility and the exercise of discretion are matters of law for the judge, but to decide them, he or she may have to conduct a trial within a trial, that is, a ‘voir dire’. This Page 4 of 5

Nick Dowse

Elements of Evidence

involves an inquiry into whether facts exist that inform the decision to be made on such issues. In a jury trial, evidence on a voir dire is given in the absence of the jury. g. In a voir dire, the judge hears legal submissions from opposing counsel about particular questions of law (often about process or admissibility of evidence) and evidence of collateral facts in order to give a direction or ruling.

Page 5 of 5...