Law of Evidence and Proof

Question 1

What will the value of the “weight of evidence” depend on?

Answer 1

A wide range of factors, including:

• the extent to which it is directly relevant
• the extent to which it is supported or contradicted by other evidence produced
• the veracity of the witness

Question 2

In a proceeding evidence can be given in what ways?

Answer 2

• In the ordinary way (orally in court, in a affidavit filed in court or reading a formal statement)
• In an alternative way (in the courtroom but unable to see the defendant)
• In any other way

Question 3

What is the ‘Woolmington Principle’?

Answer 3

The fundamental principle in criminal law is the presumption of innocence, known as the Woolmington Principle.

Question 4

What does the Woolmington Principle establish?

Answer 4

Establishes that, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.

Question 5

What is the practical obligation on defence in relation to burden of proof?

Answer 5

If the prosecution proves facts, then the defendant has to produce some story or evidence if they want to suggest the conclusion is wrong.

Question 6

Explain the evidential burden on defence:

Answer 6

Having an evidential burden means that a defence cannot be left to the jury unless it has been made a live issue by the defence.

It is not a burden of proof and once it has been made a live issue the prosecution must destroy the defence.

Question 7

What are the exemptions to the Woolmington Principle?

Answer 7

• Defence of Insanity (Section 23 (1) Crimes Act 1961)
• Possess offensive weapon

Question 8

What are the purpose of “Public welfare offences” where Woolmington may not apply?

Answer 8

The purpose is to regulate everyday conduct having a tendency to endanger the public. For these offences, once the prosecution has proved the actus reus there is no need to prove mens rea.

These are strict liability offences!

Question 9

The majority in R v Wanhalla suggested the following what be given?

Answer 9

• The starting point is the presumption of innocence.
• The Crown must prove that the accused is guilty beyond reasonable doubt
• It is not enough for the Crown to persuade you that the accused is probably guilty or even that he is very likely guilty

Wanhalla formulation is not mandatory but should be encouraged

Question 10

What must the defence show if they are required to prove a particular element on the balance of probabilities?

Answer 10

That it is more probable than not.