TH Evidence Notes
Trial Procedure (Criminal)
1. Accused has Indictment (charge) read to him / her and then asked to enter his / her plea – this is called the ‘Arraignment’ process.
2. Jury empanelled and sworn in.
3. Prosecution makes brief Opening Address outlining the elements of the offence and the evidence he / she will call in support of the Prosecution case.
4. Defence may make brief statement if wishes to do so.
5. Witnesses for Prosecution called to give evidence.
6. Opening Address by Defence.
7. Witnesses for Defence called.
8. Closing submissions by Lawyers (Prosecution goes first).
9. Judge summarises the evidence and law for Jury.
10. Verdict (Guilty or Not Guilty).
11. Sentencing (if needed).
Topic 1: Proof and Presumption
Burden of Proof
• Legal Burden of Proof
o Criminal → Prosecution bears the onus of proving the guilt of the accused (Woolmington)
▪ obligation to prove all elements of the offence
o Civil → party who makes assertion in pleadings must prove assertion
• Evidential Burden of Proof
o the burden a party must meet to demonstrate to the court that an issue has sufficient evidence, for the court to take on that particular issue
o obligation to produce sufficient evidence to render the issue worthy of consideration by the court
o if there is insufficient evidence to support claims - fail to meet burden so issue will not be addressed (The Queen v Khazaal)
o evidence must be sufficient to show that there is a reasonable possibility that the issue exists
Standards of Proof
• Criminal
o P must prove D’s guilt beyond reasonable doubt (s 141 Evidence Act – EA)
▪ no attempt should be made to explain BRD (Green v The Queen)
o in circumstantial evidence, no requirement for each piece of evidence to be proven BRD
▪ evidence considered as a whole unless fundamental to reasoning (Shepherd v The Queen)
• Civil
o party seeking to prove something must do so on balance of probabilities (s 140 EA)
o trier of fact must feel an actual persuasion of the occurrence or existence of particular facts o standard of proof must be strictly met
o strength of evidence necessary to satisfy civil standard will vary depending on the gravity of allegations and consequences (Briginshaw v Briginshaw)
Judicial Notice
• s 144 EA - certain facts do not need to be proven
o i.e. common knowledge - referred to as notorious facts
o where court considers something common knowledge, will not require evidence and can take judicial notice of the fact
▪ also applies to common sense
• Australian Communist Party v Commonwealth
o HCA took judicial notice of the tenets of Marxism – no evidence needed to prove what ideologies stood for
• Two categories of facts that can be judicially noticed o 1. Judicial notice without inquiry
▪ cancer is a health problem, legal advice is expensive etc.
o 2. Judicial Notice After Inquiry
▪ general facts of history, such as communism Evidence Act Admissibility
• Uniform Evidence Act 1995 (NSW):
o Major chapters:
▪ 1. Preliminary matters (application of Act)
▪ 2. Adducing evidence
▪ 3. Admissibility
▪ 4. Proof
o Evidence may be classified as:
▪ Testimonial (oral, written given by witness)
▪ Documents (papers, electronic recording)
▪ Other (views, re-enactments, real evidence)
• Admissibility Process:
o 1. Relevant/not relevant;
o 2. If relevant, are there any exclusionary rules that apply?
o 3. If no exclusionary rules apply, should trial judge use discretion to exclude evidence?
Topic 2: Types of Evidence
Documentary Evidence 1. IS IT A DOCUMENT?
• a document includes, but is not limited to (EA Dictionary Part 1)
• “document” means any record of information, and includes:
o (a) anything on which there is writing,
o (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them or,
o (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or
o (d) a map, plan, drawing or photograph
• Cl 8, Part 2: References to documents
o a reference in this Act to a document includes a reference to:
▪ (a) any part of the document, or
▪ (b) any copy, reproduction or duplicate of the document or of any part of the document, or
▪ (c) any part of such a copy, reproduction or duplicate 2. IS THE DOCUMENT AVAILABLE?
• According to the Part 2 Cl 5 EA dictionary, a document is unavailable if:
o Cannot be found after reasonable inquiry/search by the party
o Was destroyed by, or on behalf of the party not in bad faith, or by another person o Would be impractical to produce it during the course of proceedings
o Production during proceedings would render a person liable to conviction for an offence o It is not in the possession or under control of the party and:
▪ It cannot be obtained by a judicial procedure of the court; or
▪ It is in the possession of another part who might know or might reasonably be expected to know that evidence of the contents is relevant
▪ It is in the possession of such a party at a time when that party knew or might reasonably be expected to have known that the evidence is relevant
3. IF THE DOCUMENT IS UNAVAILABLE, CAN CONTENTS BE PROVEN?
• if the document is not available to a party or the existence/contents are not in dispute, a party may adduce evidence as to the content of the document by:
• s 48(4) - a party may adduce evidence of contents of document in question that is not available to party, or existence and contents of which are not in issue by;
o (a) tendering a document that is a copy of, or an extract from or summary of, the document in question
o (b) adducing from a witness evidence of the contents of the document in question 4. IF THE DOCUMENT IS AVAILABLE, CAN CONTENTS BE PROVEN?
• if the document is available, the contents of it can be proven by:
o Tendering the document itself (s48(1))
o Adducing evidence as to its contents (e.g. letter from a party making admission) (s48(1)(a)) o Tendering a copy that has been produced by a device that reproduces contents of
documents (48(1)(b))
o Tendering a transcript of a document (s48(1)(c))
o If the document cannot be used unless a decide is used to retrieve it – tendering a document that purports to have been produced by that device
▪ Device presumed to be accurate and reliable where it is a device that is ordinarily reliable (s146) or being used by a business for its purposes (s147)
o Tendering a document that forms part of business records, or that is a copy/extract or summary of the document in question (s48(1)(e))
o Tendering a copy of a public document that has been printed by official government printer or under the authority of the Cth, State or Territory Government/Parliament (48(1)(f))
• for complex or voluminous documents, it may be possible to tender a summary with leave o Evidence may be given in chart, summary or other material if it appears it will aid the
comprehension of the evidence (s29(4))
▪ Upheld as relating to documents in R v Gergiou [2005]
▪ Evidence in that form must go before the court
o Court can direct that a party adduce evidence of the contents of two or more documents in summary form if the court is satisfied it would not otherwise be conveniently possible to examine evidence due to its volume or complexity (s50(1)
