1. Law of Evidence and Proof

Question 1

Burden of proof

Woolmington principle: presumption of innocence

Answer 1

This principle establishes that the burden of proof lies with the prosecution in relation to all of the elements of the offence.

Exceptions:
* The accused wishes to rely on the defence of insanity.
* Specific statutory exceptions exist.
* s202A(4)(b) of the Crimes Act

Question 2

“Evidential burden”

Answer 2

Having an evidential burden means that a defence cannot be left to the jury or the judge unless it has been made a live issue by the defence. It is not a burden of proof.

Burden of proof remains with prosecution, they must then destroy the defence or live issue.

Question 3

Standard of proof

BRD v BP

Answer 3

where the legal burden is on the prosecution it must be discharged “beyond reasonable doubt”.

Any element which the defence bears the burden of proving need only be proved on the “balance of probabilities”.

Question 4

Beyond reasonable doubt
R v Wanhalla

Honest and reasonable
Careful and impartial

Answer 4

“an honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence”

Question 5

Balance of probabilities

Answer 5

it must simply show that it is more probable than not.

Question 6

R v Gwaze - Rules of admissibility are rules of law

Answer 6

Rules of admissibility, including ss 7 and 8, are rules of law and are not matters of discretion.