Module 2 Notes - rules of examination PDF

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5216 L2: INTRODUCTION STANDARDS OF PROOF

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METHODS

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In this lecture we consider: a) Proof: standard of proof; the legal burden; the evidential burden b) Cases where no proof is required c) Introduction to different types of evidence: real; documentary; testimonial

LECTURE NOTES This topic provides the background to a number other topics in the course. UNDERSTANDING PROOF Differences between the terms  Legal burden – this is the burden of establishing the case to whatever standard is relevant o Will always be on the prosecution/plaintiff o In criminal trial the jury is the one who decides whether or not this has been met o This is the idea that the party who asserts must prove  Criminal: will always be on prosecution to do this  Civil: burden rests on the claimant to prove BUT once P has proved them it would shift to D to prove that they have/haven’t done what P is putting forward  Evidential burden – putting up sufficient evidence that you could be satisfied o P will need to put forward sufficient evidence that the jury/judge COULD convict the D/accused o The judge will have to be the one to determine whether there has been sufficient evidence o This can be appealed o Kostas v HIA: when it comes to a standard of proof i.e. whether the jury is convinced beyond reasonable doubt  Standard of proof – beyond reasonable doubt (criminal) or balance of probabilities (civil) o Criminal o Civil: cannot be a guess between two probabilities – something must be more probable than another  Miller: man had been out for the night and had a lot of stuff to drink. He walked home from the pub with a friend, at some point he diverged from the path and fell off a partially-ffenced area and then tried to sue the council.  Number of arguments re the fencing o Fencing was too low = court accepted o Lighting was insufficient = didn’t accept  Basic idea was that this was a man who had no memory of what had happened but was saying that he had tripped because of the fencing o Court said yes this is a possibility BUT based on the info provided this is not the only possibility/most probable possibility = burden of proof not discharged  Generally the legal and evidential burdens go hand in hand o If you’re the party that has the duty to prove the case then you also have to have the evidence to back that up Briginshaw v Briginshaw Facts: this was a case about the dissolution of marriage – Mr B wanted to dissolve his marriage on the grounds of his wife’s alleged adultery (which was a crime back then). They got married in early 20s but then separated and wife moved out, she sued him for her alimony, he became suspicious and sent a PI who found people that were willing to say that she was sleeping on someone else.

Issues: This wasn’t a criminal case, the standard was the BoP but in the course of satisfying this a serious criminal allegation was made. Decision: - Dixon J: “[W]hen the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality”. o Have to actually be convinced even on the lower civil standard that something happened o The ‘seriousness of an allegation, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding…must affect’ whether the court has been satisfied of something  This doesn’t mean that there is a third standard but in cases where there are serious allegations or there are some potential serious consequences someone should be satisfied more. - Idea that in some cases even though the standard doesn’t change how we are satisfied by that standard could change o i.e. on a more serious case you might take more time to be satisfied on balance of probabilities - This stuff has been applied in cases where there are some allegations of dishonesty/fraud = will have to be extra careful before making such a finding o Trustee v Cummins - person being accused of dishonesty/fraud was deceased but this standard was still applied o AG (Qld) v HTR: for dangerous prisoners should apply a Briginshaw principle o S140 EAC: Briginshaw principle has been codified into the cth (not qld) legislation  Civil proceedings: standard of proof  (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.  (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:  (a) the nature of the cause of action or defence; and  (b) the nature of the subject-matter of the proceeding; and  (c) the gravity of the matters alleged. DPP v Woolmington Facts: W’s wife had gone to live with her mother but he was trying to get her back. His account of the incident was that he had gone to her mums house and tried to kill himself and while he tried to pull the gun out of his coat he accidentally fired and shot her.

NOTES FROM READINGS CH1 BURDENS OF PROOF The obligation that rests on a party who seeks to have a particular issue decided in their favour to adduce sufficient evidence to support their contention

LEGAL BURDEN Tthis is the burden of establishing the case to whatever standard is relevant  Will always be on the prosecution/plaintiff  In criminal trial the jury is the one who decides whether or not this has been met  This is the idea that the party who asserts must prove  Criminal: will always be on prosecution to do this  Civil: burden rests on the claimant to prove BUT once P has proved them it would shift to D to prove that they have/haven’t done what P is putting forward EVIDENTIAL BURDEN The burden of adducing or pointing to evidence that suggests to a reasonable possibility that the matter exists or doesn’t exist.  P will need to put forward sufficient evidence that the jury/judge COULD convict the D/accused  The judge will have to be the one to determine whether there has been sufficient evidence  This can be appealed  Kostas v HIA: when it comes to a standard of proof i.e. whether the jury is convinced beyond reasonable doubt TACTICAL BURDEN This is the burden of providing the counter-evidence  basically if A was alleging that B took a loan from them and owed them money over that then B had the tactical burden to prevent the court from making the inference that B has breached the loan contract.

INCIDENCE OF BOP AND STANDARDS OF PROOF Civil Actions Who does it rest on?  generally both will be on the party that will lose on the issue if no evidence is led or if at the end of the day there in an equal balance in te persuasiveness of the evidence led by both on that issue [basically the one who needs to actively do something to win?] Level to discharge  need to have enough to allow the court to draw a positive inference that their case theory has been established  Gurnett v Macquarie Stevedoring: positive inference = strict logical deduction from known or assumed facts and needs to be more than a possibility  Rhesa Shipping: the evidence adduced must make the theory seem more likely than any other theory (not just probable) Standard of Proof?  BoP  NB: this is not a fixed concept and can change depending on the seriousness of the allegation (s140 EAC)  Briginshaw v Briginshaw: this was the case where someone was charged w adultery(?) and at the time this was seen as something very serious = Dixon J: “[W]hen the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality”. o Doesn’t mean that there are three SoP categories – just that in certain cases you should be MORE SURE Criminal Cases General Position CL ultimate burden on crown of proving guilt of accused BRD. Woolmington; R v Mullen: because there is presumption of innocence no matter what the charge of where the trial the principle that prosecution must prove the guilt of accused stands. Golden thread = crown has to eliminate any and all reasonable doubt that might allow innocence to be a rational inference from the evidence.  What is BRD: judge shouldn’t try to explain this other than comparing it to the lower civil BoP standard otherwise it is positively dangerous and opens up an appeal point  let the jury take it face value BUT NOTE - Goncalves jury should not be encouraged to search for absolute certainty Legal Burden on Defence  two circumstances were identified in Woolmington that put the legal onus on D

INSANITY DEFENCE  QCC s26 = there is a presumption of sanity until contrary is proven so the accused is required to prove their own insanity in rebuttal of this presumption that they wre sound of mind at the time of the commission of the offence (R v Porter Dixon J)  (EXPRESS) STATUTORY EXCEPTIONS  there are a number of other defences in qld law that specify that D has to prove something o QCC s 304A Diminished Responsibility  (1) can reduce murder charge to manslaughter BUT (2) up to D to prove that person is liable to be convicted of manslaughter only (i.e. will need to actively negate that there was any intention to cause death/gbh) o Drugs Misuse Act s124 Lawful possession of Drugs  D needs to show they were obtained by lawful prescription and that other criteria were met  (IMPLIED) STATUTORY EXCEPTIONS [pg28-30]  DPP v United Telecasters – there is reversal of onus in circumstances where proof of the matter in question involves either: o Proof of facts peculiarly within the knowledge of the D; OR o Disproof of facts would involved R in the difficult task of proving a negative Evidential Burden & R  since they generally have the legal burden of proving every issue in the case (facts relating to elements of the offence they also have the evidential burden to support this Evidential Burden & D  general pos. = crown bears the burden BUT UNDER CL D WILL BEAR THE BURDEN on all defences (because the facts that give rise to these are within the knowledge of D only = easier for them to prove rather than R disprove) that either:  INVOLVE A SUGGESTION OF MENTAL IMPAIRMENT  insanity and diminished resp, intoxication, automatism  PROVIDE D WITH LAWFUL EXCUSE OR JUSTIFICATION FOR WHAT THEY DID  self-def, duress, honest and reasonable mistake of fact  ALIBI  legal burden of disproof only on R AFTER there is enough evidence adduced by D to justify leaving that defence w the jury NB1: Jaysaena v The Queen: defence will ONLY be left w jury AFTER accused adduces enough evidence to make it possible for the jury to acquit because there will be reasonable doubt re the R’s case theory. D doesn’t need to bring the evidence themselves can also use cross-examination of R’s witnesses or even anything that comes up in the examination-in-chief. NB2: once D has adduced enough evidence such that the defence is left w the jury then R HAD THE LEGAL BURDEN TO DISPROVE BRD. Standard of Proof on Secondary Issues [dealt within voir dire or s590AA application]  issues that are not directly the facts/elements of the offence but come up when trying to prove/disprove the elements e.g.  ADMISSIBILITY OF EVIDENCE (primary issue might be whether or not D stabbed the victim and secondary issue will be whether or not certain hearsay statements should be allowed in as evidence to support/disprove these fact). o Wendo v The Queen: HCA said that even in criminal case the party bearing BoP of admissibility of evidence need only discharge that burden to the extent of showing a prima facie justification for its admission [NB: if Crown is adducing = will have to prove reliability BRD]  WHAT INFERENCES CAN BE DRAWN FROM CIRCUMSTANTIAL EVIDENCE OF EXISTENCE OF FII o Strand in cable fact/evidence = doesn’t need to be BRD individually just overall conclusion/inference o Chain link fact/evidence = indispensable intermediate fact must be proved BRD o Shepherd v The Queen (below) SoP in Sentence Hearings  EAQ s132C BoP used when there are challenges to facts asserted during the sentencing and more evidence needs to be brought in 

SUBMISSIONS OF NO CASE TO ANSWER One side can petition for the court to dismiss the matter/issue even without adducing evidence to officially disprove it by saying that the other party’s argument is incapable in law at succeeding.

CIVIL MATTERS There are TWO DISTINCT TESTS that are applied:  INSUFFICIENCY  legal sufficiency of the evidence already led = if insufficient then dismissed o Protean v American Home Assurance: in this case judge had to dismiss the P’s case because on face value there was not enough evidence to establish the legal elements that P wanted to argue  QUALITY  persuasive quality of that evidence = if lack of quality then dismissed o Jones v Dunkel: goes beyond legal min necessary to establish case and requires judge to consider the weight of the evidence adduced – basically judge will have to consider and think on the evidence provided is that actually a chance that there could be a

finding in P’s favour

CRIMINAL MATTERS Only ONE test applied:  INSUFFICIENCY  May v O’Sullivan: judges to consider whether on the evidence as it stands could D be lawfully convicted – it’s really a question of law. The judge/magistrate needs to evaluate the evidence AT ITS HIGHEST w/o regard to any alternative explanations which might xist consistent w D’s innocence and then determine whether or not in law the evidence could support the conviction.  Pg 37-39

CH 2 – PROOF WITHOUT NEW EVIDENCE PRESUMPTIONS This Is when A proves a certain fact which, in the absence of rebutting evidence from B entitle court to draw further conclusions of fact that are PRESUMED to exist following proof of the basic facts Presumption of Fact Circimstantial evidence that INVITES NOT REQUIRES jury to draw certain inferences from basic facts that have been established by the evidence e.g. someone running away from the scene of the crime, the logical inference would be that they are the perpetrator BUT the jury DOESN’T HAVE TO come to this conclusion they are free to ignore it. Some common examples that have been accepted: POSSESSION OF RECENTLY STOLEN PROPERTY -> if R proves that accused was in possession of such prop then in the absence of any rebutting evidence the court is entitled to infer D was involved in the theft/receiving of the prop CONTINUANCE -> no more than recognition of fact that in ordinary human experience a state of affairs that existed earlier is likely to have remained in existence at time of question e.g. someone expresses suicidal thoughts and then later they were found dead o R v Buchanan and R v Hovarth: both of these cases involved charges of dangerous driving resulting death. Both cases show that the way a vehicle was driving few mins/kms prior to the accident may well have a presumptive bearing on how it was being dirivng at the time of the accident BUT Hovarth shows that the court is not obliged to follow this presumption. o Carian v Elton: in this case the position of the parties involved in the accident at the time of the accident was presumed based on an agreement they had shortly before they started their journey. o Mason v Tritton: case involving NT rights of aboriginal people to fish – preumpstions can be made in reserve i.e. look at whats happening now and the assume that this is what happened in the past RES IPSA LOQUITUR -> the principle that the mere occurrence of some types of accident is sufficient to imply negligence. o Holberts Oyster Supplies [NSWSC]: RIL three conditions must be satisfied before the presumption applies 1) cause of incident unexplained 2) incident must be in the common knowledge and experience of mankind one that does not ordinarily occur w/o negligence 3) thing must have been under the exclusive control of D Presumption of fact Recently stolen property Maslin v Searle (2010) 202 A Crim R 159 Continuance Carian v Elton [2006] NSWCA 168; cf Horvath [1972] VR 533 Current state of affairs demonstrates Mason v Tritton (1994) NSWLR 572 previous state of affairs Res ipsa loquitor Scott v London & St Katherine Docks Co (1865) 159 ER 665 Rebuttable Presumption of Law These are presumptions that have become so ingrained in the law that if there is no rebutting evidence then the court MUST draw the logical/rational conclusion that can be inferred.  CL PRESUMPTION OF INNOCENCE -> not just part of the Woolmington criminal law golden thread innocent until proven guilty things – extends to civil cases, “he who asserts must prove” Briginshaw  CL PRESUMPTION OF REGULARITY -> started w the notion that a person purporting to act in a public role or office has been validly appointed and so their exercise of power is valid ( Dixon: presumption that the police officer had validly delegated his powers). Also presumption of marriage on proof of duly performed ceremony. And Statuotyr presumption of postage EAC s160 upon showing receipt.  CL PRESUMPTION OF LEGITIMACY -> if child is born out of wedlock and the mother and alleged father had access to each other at the alleged conception will pressume that those are the parents

PREUMPSTION OF ACCURACY OF SCIENTIFIC INSTRUMENTS -> presumption that this stuff is accurate (but not infallible) and therefore the results are accurate, only the challenge to the instrument ???? [pg 50-51]  PRESUMPTION OF LACK OF CRIMINAL CAPACITY OF PERSON AGED UNDER 14YRS -> QCC s 29(2)  PRESUMPTION OF INVOLUNTARINESS OF CONFESSION FOLLOWING THREAT OR INDUCEMENT -> Criminal Law Amendmend Act (Qld) s 10 no confession which is tendered in evidence on any crim prosecution shall be received which has been induced by any threat or promise by some person in authority and every confession made after such threat/promise shall be deemed to have been induced thereby unless contrary can be shown  PRESUMPTION OF SANITY -> QCC s26 D has legal burden of proving any mental impairment [THIS IS ACTUALY A STATUTORY RULE OF LAW NOT A PRESUMPTION – THERE IS NO INFERENCE TO BE DRAWN FROM EVIDENCE IT JUST IS] Rebuttable presumptions of law Innocence Woolmington Regularity (re things done in Dixon v Lekich (2010) 56 MCR 70 public capacity) Legitimacy (re children born in See s69 Family Law Act 1975 (Cth) wedlock) 

Accuracy instruments

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scientific

R v Anderson [2006] 1 Qd R 250; Porter v Kolodzeij [1962] VR 75

Lack of criminal capacity for a person under 14

s29(2) QCC

Involuntariness of confession following threat or inducement Sanity

S10 Criminal Law Amendment Act

Validity of marriage

R v Umanski [1961] VR 242

S26 QCC

In a civil case, the fact that a S79 EAQ; cf Pharmacy Board of Australia v Coghill [2015] QCAT person has previously been 27 convicted of a crime- proof they did commit it Irrebuttable Presumptions of Law QCC s29(1) and EAQ s80 -> person < 10yrs is not criminally responsible for any act or omission Not something that evidence lawyers concern themselves w – just rules that mean a specific conclusion has to be reached every time. [pg 52] Presumptions from Previous Proceedings EAQ s79 – if someone has been convicted of a criminal proceeding (80) then in the relevant civil proceedings there is a presumption that they committed that act.

JUDICIAL NOTICE Nature of Judicial Notice This is basically when the court accepts something as a fact in existence even though the evidence to prove it hasn’t been established. Generally done for things that are pretty uncontroversial e.g. New Year’s Day = 1 January.  JN WITHOUT ENQUIRY -> this is for things that are so notorious or well known to everyone – it’s a product of everyday human life experience as factors that give rise to factual presumption and to circumstantial evidence but by JN it’s formally denoted as final and may not be challenged. EAC s144 (1) If prove that it is something that is common knowledge then don’t need any more evidence to prove the ...