Law of Evidence and Proof

Question 1

What is Burden of Proof

Answer 1

• Whoever asserts something must prove it
• BURDEN OF PROOF is on the crown - prove guilt rather than defendant prove innocence
• In criminal cases must prove every ingredient beyond reasonable doubt

Question 2

Woolmington Fundamental Principal - Presumption of Innocence/Burden of Proof

Answer 2

Establishes that (other than specific statutory exceptions) burden of proof lies with the prosecution in relation to all elements of the offence.

Question 3

Evidential Burden

Answer 3

EVIDENTIAL BURDEN ON DEFENCE
A defence cannot be left to jury/judge unless made a live issue by the defence. It’s not a burden of proof and once a live issue the prosecution must destroy the defence as burden of proof remains with prosecution

Question 4

Burden of Proof Exceptions

Answer 4

EXCEPTIONS TO WOOLMINGTON

• Insanity S23(1) CA61 (defendant must prove insanity)
• Specific statutory exceptions - some offences shift burden of proof of defence on defendant e.g S202A(4)(b) CA61 prima facie show intent to commit offence involving bodily injury (defendant to prove no intent to used OW to commit bodily injury)
• May not apply in public welfare offences, once actus reus proved prosecution doesn’t need to prove mes rea

Question 5

Beyond Reasonable Doubt

Answer 5

BEYOND REASONABLE DOUBT (WANHALLAH) - prosecution legal burden

Juries concluding: A RD is an honest and reasonable uncertainty left in your mind about the guilt of the defendant after giving careful/impartial consideration to the evidence.
Starting point is presumably innocent, must treat defendant this way until crown has proved guilt.

A very high standard - only met by crown if judge/jury are sure the accused is guilty after careful/impartial consideration.

Question 6

Balance of Probabilities

Answer 6

Where defence is to prove an element on BOP it must simply show that it is more probably then not. If probabilities are equal the burden is not discharged

Question 7

Onus Falls on Defence to Prove Particular Element to What Standard

Answer 7

On balance of probabilities - more probable than not

Question 8

4 Fundamental Principals of Evidence To Consider if Admissible

Answer 8

• Relevance, reliability, unfairness, public interest

Question 9

What Makes Good Evidence - Facts that Prove the Charge

Answer 9

WHAT MAKES GOOD EVIDENCE - FACTS THAT PROVE THE CHARGE
Facts must prove the elements of the charge and the evidence should be made up of facts that prove that. Consider what evidence is relevant and will help prove the guilt of the person charged.