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Links in a chain Strands in a cable
What needs
to be proved Each piece of evidence must be proved B.R.D No one of the pieces needs to be proved B.R.D, but cumulatively, they need to be B.R.D Explanation Each link of circumstantial evidence is
indispensable must therefore by sufficiently strong to support the conclusion B.R.D before the ultimate inference (the accused’s guilt) can be drawn If any link fails, the accused must be acquitted as the entire chain of reasoning will fail to meet the requisite standard of B.R.D
If one stand fails, it will not be fatal to the case.
Used in situations where the prosecution has a number of pieces of circumstantial evidence that together are attempting to prove a fact in issue
Example
(using Plomp) Circumstantial evidence that Plomp was at the beach when his wife died – his presence is a link in the chain; the idea is fundamental to proving his guilt as if he was not there, he obviously could not have killed his wife
This circumstantial evidence must be proved beyond reasonable doubt if this is the only evidence he was at the beach - supports the entire weight of the case beyond reasonable doubt
The other evidence about the wife being a strong swimmer, the weather conditions, other young lovers etc, are all strands in a cable, no own strand had to established beyond a reasonable doubt THE CHAMBERLAIN DIRECTION
Use for
o Criminal cases (that are)
o Entirely based on circumstantial evidence
Effect
• Operates as a mandatory direction that is to be given to the jury in trails where the accused’s guilt is to be determined based wholly upon circumstantial evidence
• Arose from Chamberlain v The Queen (No 2)
• Where the jury relies upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances (Shepherd v The Queen).
o Essentially, this acts as an “amplification” of beyond reasonable doubt standard of proof
Links in a Chain vs Strands in a Cable
• circumstantial evidence can be put together as links in a chain or strands in a cable and that is fundamentally important in a purely circumstantial evidence case
o knowing how the evidence fits together in an argument that meets all the elements of an offence shows you what needs to be proven
While the prosecution bears the burden of proving all elements of the crime beyond reasonable doubt, it does not mean that every fact, every piece of evidence relied upon to prove an element by inference must itself be proved beyond reasonable doubt
• This distinction was examined in Shepherd v The Queen and explores the cumulative effect of circumstantial evidence and in particular, what a jury needs to be convinced of, beyond reasonable doubt, to find an accused person guilty.
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• A simple rule with lots of practical application
Where a party seeks to contradict the evidence given by a witness in chief, the party must, during cross- examination, put to the witness the substance of the contradictory or inconsistent evidence (Browne v Dunn)
If counsel is preparing to give contradictory evidence to that which the other party’s witness has just spoken to, counsel must, during cross-examination, directly question the witness about the contradiction
Example:
Issue whether D in Melbourne or Sydney?
Witness says D was in Sydney.
You are going to adduce evidence that says they were in Melbourne.
This rule means you have to put this to the witness during cross-examination
THE RULE IN BROWNE V DUNN
EFFECTS AND RATIONALES
Overarching principle/rationale of procedural fairness and right to a fair trial
• gives the factfinder the opportunity to observe the witness in how they respond to the contradiction asked by the cross-examiner
o by having the contradictory case put directly to the witness, it may assist factfinder (jury) in determining the weight to attribute to that witness’s evidence – and who to believe
• puts opposing counsel on notice that evidence from their witness will be challenged
o gives opposing counsel to present corroborating evidence and buttress the credibility of that witness through the use of other witnesses in agreement with their witness.
• puts the witness on notice that their testimony will be contested
o which then allows them to respond to the contradiction under oath
§ they are able to qualify, re-word or explain that the new evidence does in fact not contradict the testimony they have just presented
EXCEPTIONS TO APPLICABILITY
• Inherently unreliable witness: R v Byczko
• Witness who has no recollection of the events
Why? – in these cases, the factfinder will not be assisted in discovering the truth of the matter and therefore it would be a waste of the court’s valuable time and resources to continue
• Where a matter is inherently in issue between the parties
Why? – No need to put opposing counsel on notice that such evidence will be challenged if the matters is understandably in issue between the parties. Again, asking each witness about the contradictory evidence would be a waste of the court’s valuable time and resources.
Seymour v Australian Broadcasting Corpoation Civil case!
Issue of fraud was clearly contested between the two parties such that the matter did not need to be expressly raised before the witness presenting contradictory testimony
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OPINION & EXPERT EVIDENCE
1. OPINION EVIDENCE – STARTING POINT
Starting point: opinion evidence is inadmissible as there is a general prohibition on witnesses giving their opinions
Why?
• Fact-finder in at least as good a position as the witness to form an opinion à usurp their role
• Opinion may end up misleading the court
For Cth: general prohibition contained in s76 Evidence Act 1995 (Cth)
(A) WHERE THE PERSON’S OPINION IS A FACT IN ISSUE IN THE TRIAL Opinion must directly relate to fact in issue here
Example: elements of an offence that require a subjective belief i.e. self-defence In these situations, the opinion is relevant to proceedings
2. DOES AN EXCEPTION APPLY?
Situations where the opinion of the witness is relevant because they are able to provide insight which would be difficult or impossible for the fact finder to gain for themselves
(A) Where the person’s opinion is a fact in issue in the trial (B) Where a lay witness may give an opinion
(C) Where an expert witness may give an opinion
(B) OPINION EVIDENCE BY LAY WITNESS A non-exhaustive list of categories was given in Sherrard v Jacob:
• Identification of handwriting, persons and things
• Apparent age
• The bodily plight or condition of person, including death and illness
• Emotional state of a person
• Condition of things
• Certain questions of value
• Estimates of speed and distance
*Remember, argue by analogy is able to because categories are not closed*
• Common thread is that they all involve situations where the person giving the evidence is in a better position than the fact finder to draw the inference from the facts
o In these cases it is more likely that the opinion evidence, even though it is given by a lay person, will be admissible
• Therefore, look for situations where it might be difficult for a witness to clearly identify what is supporting their conclusion
R v Whitely – areas where a layman with a certain amount of experience of the affair of this world can express his opinion
• In this case, police officers and even normal people had enough experience with seeing intoxicated people to be able to give opinion that the driver was intoxicated.
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EXCEPTIONS TO THE RULE AGAINST HEARSAY
ORIENTATION
Now we have identified that the piece of evidence falls within the exclusionary rule, we must determine whether a common law or statutory exception applies
If an exception applies, the evidence ends up not being excluded by the rule against hearsay and its consequently admissible for the truth of the content of the statement
COMMON LAW EXCPETIONS
The major common law exceptions we will consider are:
[1] confessions/admissions in criminal or civil proceedings;
[2] statements of persons now deceased;
[3] Statements of contemporaneous physical condition
New common law exceptions?
• Admissions by others – third party confessions
• Corruption exception
Res gestae as an exception to the rule against hearsay
[1] ADMISSIONS OF THE PARTIES
• See later topic
• Rationale: people will not make statements which are against their own interests unless those statements are true à high degree of reliability
