Notes to memorise Flashcards
What is the burden and standard of proof in criminal matters? (EA, s 141)
In a criminal proceeding, the burden of proof lies on the Prosecution and the standard of proof is beyond reasonable doubt (EA, s 141(1)). All that must be proved BRD are the elements of the offence and the absence of a defence (JDA, s 61).
The Court is to find the case of an Accused proved if it is satisfied it has been proved on the balance of probabilities (EA, s 141(2)).
What is an indictable offence? (SA, 112)
An indictable offence is an offence under Victorian legislation described as being level 1-6 or punishable by level 1-6 imprisonment or fine or both (SA, s 112). Offences under the Crimes Act and Wrongs Act are deemed indictable unless the contrary intention appears. Indictable offences are usually more serious offences (e.g. rape, murder) though can also range to less serious offences (e.g. theft, some drug offences).
Indictable offences are ultimately determined in the indictable jurisdiction of the CCV or SCV. An Accused generally has a right for their indictable offence to be heard by a jury. Indictable offences attract higher penalties in recognition of their more serious nature and harm.
What is a summary offence? (SA, 112)
A summary offence is any offence under Victorian legislation which is not an indictable offence (SA, s 112). Summary offences are comparatively less serious offences (e.g. traffic offences, public nuisance). At first instance, they are determined in the MCV by a Magistrate (no jury). The maximum penalty available is 2 years imprisonment for 1 offence or 5 years for several offences (SA, ss 113A, 113B).
What is an opinion? What is a fact?
Neither ‘opinion’ nor ‘fact’ are defined in the EA.
An opinion is an inference or conclusion drawn from observed and communicable data (Honeysett).
A fact is something that is known to have happened or to exist, something for which direct proof exists.
What is the difference between a charge and an indictment?
A charge is a statement of the offence alleged to have been committed by the Accused that the Prosecution sets out to prove. To be valid, it must be stated in Accordance with Sch 1 of the CPA (s 6(3)).
In comparison, an indictment is a document that includes the charge(s) to be heard in the indictable jurisdiction of the CCV or SCV. It is filed by the DPP or Crown Prosecutor before a plea hearing or jury trial. To be valid, the indictment must be signed by the DPP (or Crown Prosecutor in the name of the DPP) and outline the charges in compliance with Sch 1 of the CPA (s 159(3)). It must also include the names of witnesses.
Within what timeframe must a proceeding for a summary offence be commenced? (CPA, s 7)
Within 12 months (CPA, s 7(1)).
The exceptions to this rule are where another timeframe is specified under another Act or where the Accused gives written consent and the DPP or a Crown Prosecutor consent to the proceeding being commenced after the expiry of that period (CPA, ss 7(1)(a) and (b)).
What is the burden and standard of proof in civil matters?
In a civil proceeding, the burden generally falls on the Plaintiff. If the Defence is not denying an issue of fact but arguing a point which, if established, is an avoidance of the Plaintiff’s claim, the burden is on the Defence with respect to that point.
The Court must find the case of a party proved if it is satisfied it has been proved on the balance of probabilities (EA, s 140). In determining whether it is satisfied on the balance of probabilities, the Court may consider the nature of the claims, subject matter, and gravity of matters alleged (EA, s 140(2); Briginshaw).
What is the difference between a writ and an originating motion?
Civil proceedings must be commenced by either of the two available forms of originating process - a writ or originating motion (SCR, rr 4.04, 4.05).
Except in certain limited circumstances, every proceeding is to be commenced by writ (r 4.04). A writ shall be in Form 5A and indorsed by a statement of claim. A writ is appropriate for proceedings where there will be disputes of fact that require pleadings and discovery.
An originating motion is used when:
- there is no defendant (r 4.05(a));
- allowed under any Act or under the SCR (r 4.05(b) and (c)); or
- where there is likely to be no substantial factual dispute (e.g. judicial review).
At a trial commenced by OM, evidence is taken by affidavit as opposed to the usual process of oral evidence tested by XXN (r 45.02).
When can a civil proceeding have a jury? (r 47.02)
A proceeding commenced by writ and founded on contract or tort can be tried by jury (r 47.02(1)).
For this to occur, a Plaintiff must signify a request for a jury in the writ, or alternatively, the Defendant may signify a request in writing within 10 days after the last appearance (r 47.02(1)(a)). The prescribed jury fees must be paid.
If neither party makes a request, the proceeding will be heard by Judge alone unless the Court orders otherwise (r 47.02(2)).
A party who requests a jury should not be deprived of a trial by jury without good cause, and a jury is presumed capable of dealing with complex matters.
What is the rule in Jones v Dunkel and when does it apply?
The rule in Jones v Dunkel is that if a part does not call a witness who would have been expected to give evidence without reasonable explanation, it may be inferred that that W’s evidence would not have assisted the party’s case.
Common law rule applies in civil proceedings and civil penalty proceedings.
The common law rule does not apply in criminal proceedings (JDA, s 44), but effectively the same reasoning and directions can be sought against the Prosecution under JDA, s 43. This reasoning cannot be sought against the Accused (JDA, ss 41, 42), consistent with the right to silence.
What is the rule in Browne v Dunn and what happens if it’s breached?
The rule in Browne v Dunn is a fundamental rule of fairness. Where a party proposes to lead evidence that contradicts or discredits a witness, it must be put to the witness in XXN so they have the opportunity to respond.
There is no single solution for a breach of this rule and the remedy will depend on the circumstances of the case. Possible remedies include seeking and being granted leave to recall the witness (EA, s 46), certain evidence being ruled inadmissible (ss 135, 137), or a direction that the failure to XXN bears upon the weight of the evidence.
What is a voir dire?
A voir sure is a ‘trial within a trial’ process by which preliminary issues such as competence, compellability or admissibility are determined (EA, s 189).
A voir dire hearing is generally conducted in the jury’s absence.
The issues for determination will be assessed on the balance of probabilities (EA, s 142).
What are the requirements for a valid charge-sheet? (CPA, s 6)
For a charge-sheet to be valid it must be in writing, signed by the informant personally, and comply with Sch 1 (s 6(3)). Sch 1 provides, among other things, that a charge must state the offence the Accused is said to have committed and contain particulars necessary to give reasonable information as to the nature of the charge in ordinary language. An error in the charge-sheet won’t invalidate it (s 9) and it can be amended (s 8).
What is the cab rank principle?
The cab rank principle provides that Counsel has an ethical obligation to take any brief offered by a solicitor provided it is within their skill and experience, they are available, an acceptable fee is offered, and the barrister is not obliged or permitted to refuse the brief under rr 101, 103-105 (BR, r 17). This rule is intended to facilitate access to justice.
When is evidence relevant?
Evidence is relevant if, assuming accepted, it could rationally affect (directly or indirectly) the assessment of probability of a fact in issue (EA, s 55).
This is a low threshold (even more so for the Defence). It connotes a minimal logical connection where the credibility or reliability of the evidence is not considered (IMM).
The facts in issue may be the elements of the offence, mode of complicity, and any defence open to the Defence (Smith).
What is probative value?
The probative value of evidence is the extent to which it rationally affects the probability of the existence of the fact in issue. This is assessed in the context of the other available evidence.
The evidence is taken at its highest, so its credibility or reliability is not considered (IMM).
What is prejudicial effect?
Prejudicial effect is the risk the jury/fact finder may misuse or overvalue the impugned evidence. Evidence is not unfairly prejudicial merely because it makes conviction more likely, there must be a real possibility the evidence might be used in an improper or unfair way (Bauer).
How can an Accused appeal against sentence? (CPA, ss 278-281)
An Accused may apply for leave to appeal against sentence by filing a notice of application for leave in accordance with the rules of Court within 28 days of sentence (ss 278, 279).
The Court of Appeal may refuse leave if there are no reasonable grounds it would reduce the sentence (s 280).
The Accused will be successful on appeal if they satisfy the Court of Appeal that there is an error in the sentence (House v R) and that a different sentence should be imposed (s 281).
The Court of Appeal must warn the Accused if it is considering increasing the sentence (s 281).
The orders on a successful appeal are either to impose a new sentence or remit (s 282).
How can the DPP appeal against sentence? (CPA, ss 287-290)
The DPP can appeal as of right if the DPP believes there is an error in the sentence and that it’s in the public interest to appeal (s 287).
The DPP must file a notice of appeal signed by the DPP within 28 days of sentence (s 288). A copy must be personally served on the Accused within 7 days and another copy must be provided to the Accused’s previous lawyers (s 288).
The DPP will be successful on appeal if the DPP satisfies the Court of Appeal that there is an error in the sentence (House v R) and that a different sentence should be imposed (s 289).
On a successful appeal, the Court of Appeal must set aside the sentence and impose the new sentence it considers appropriate (s 290).
