Prima Facie and Proofs Flashcards

(22 cards)

1
Q

PRIMA FACIE

What is Prima Facie?

A

“At first sight” or “on the face of it”.

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2
Q

For a first leg May and O’Sullivan submission to be successful, what must the court take into consideration?

A

The Court must accept the prosecution case at its highest - to see if the evidence put before the Court in the prosecution case is enough to cover prima facie and the Defendant has a case to answer. The court is only to consider evidence that, if uncontradicted and believed, could be accepted as proof by the jury.

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3
Q

What is a Prasad Direction

A

The Prasad Direction no longer has application in the Local Court since the decision of Doney v The Queen, however a Prasad Direction is a direction/invitation to a jury by a judge to find the accused not guilty prior to hearing the defence case. A Prasad Direction would be when “a verdict of guilty would be so unsafe or unsatisfactory, so manifestly unreliable that no reasonable jury could safely act upon it”.

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4
Q

What did the case of Doney v The Queen find?

A

Held that a matter must be left to the jury if there is any evidence that can be taken into account that is capable of proving guilt, regardless of the strength of that evidence. (ie: if there is some evidence of each element, regardless of the weakness or tenuous nature of that evidence, the question of guilt is one for the jury).

*. (At para 56) “…. if there is evidence (even if tenuous or inherently weak or vague) that is capable of supporting a verdict of guilty, the matter must be left to the jury”.

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5
Q

How many standards of proof are there and what are they?

A

There are 4 standards of proof:

  1. Proof Beyond a reasonable doubt
  2. Proof on the balance of probabilities
  3. Proof beyond any doubt
  4. Proof of an issue raised by a party
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6
Q

What is a 2nd leg May and O’Sullivan submission and when does it occur?

A

If a 1st leg/no case to answer is unsuccessful, the defence may make a 2nd leg May and O’Sullivan submission. A 2nd leg submission involves considering the prosecution case after questions of weight is given to the evidence (including the defence case if any). This is a close of case submission and the defence cannot then call evidence.

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7
Q

What are the 4 options available to the Defence at the close of the prosecution case?

A
  1. To make a Prima facie/no case to answer submission (1st leg May and O’Sullivan submission)
  2. To make a 2nd leg May and O’Sullivan submission
  3. Prasad Direction
  4. Defence to call evidence
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8
Q

To reach Prima Facie, what must the prosecution have?

A

Evidence to support/prove each element of an offence. If there is evidence of each of the elements, there is a prima facie case and the defendant COULD be convicted.

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9
Q

Which leg of a May and O’Sullivan is concerned with whether a Court SHOULD convict?

A

2nd Leg: probability/fact/weight/should

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10
Q

Is a first leg May and O’Sullivan submission concerned with the possibility or the probability of the Defendant being convicted?

A

Possibility. ie: COULD the Court convict?

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11
Q

In a 1st Leg May and O’Sullivan submission, is it a question of law or question of fact?

A

Question of law.

1st leg - law
2nd leg - fact

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12
Q

In a 2nd leg May and O’Sullivan submission, is it a question of law or question of fact?

A

Question of fact.

1st leg - law
2nd leg - fact

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13
Q

What is a 1st leg May and O’Sullivan submission? Cite Authority.

A

The defence asserts that they have “no case to answer”. May v O’Sullivan [1955] HCA.

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14
Q

In a first leg May and O’Sullivan, what evidence does the Court consider?

A

Only evidence that militates in favour of the prosecution.

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15
Q

What happens if a 1st leg May and O’Sullivan is rejected?

A

The defence can make a 2nd leg May and O’Sullivan submission or call evidence.

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16
Q

Is a second leg May and O’Sullivan submission concerned with the possibility or the probability of the Defendant being convicted?

A

Probability. ie: SHOULD the defendant be convicted.

HELPER to remember:

1st: possibility/question of law/could they be convicted
2nd: probability/question of fact/should they be convicted

1st: possibility/law/could
2nd: probability/fact/weight/should

17
Q

In criminal matters, who bears the onus of proof?

A

The onus of “beyond a reasonable doubt” always lies with the prosecution and never shifts from the prosecution to the Defence.

“He who asserts must prove”

*The Accused does not have to prove a thing.

17
Q

What did Woolmington’s case find (in relation to the onus of proof)?

A

Throughout the web of the English criminal law one golden thread is always seen, that is the duty of the Prosecution.. to prove the prisoner’s guilt.

18
Q

Cite the legislation where the burden of proof is found.

A

Evidence Act:
Section 140 - Balance of Probabilities (Civil)
Section 141(1) - Beyond a reasonable Doubt (Criminal)
Section 141(2) - Criminal Proceedings - Balance of Probabilities (Defendant’s case).

19
Q

In any criminal proceedings where self defence is raised, what does the prosecution have to prove? Cite legislation.

A

Section 419 of the Crimes Act. The prosecution has the onus of proving, beyond a reasonable doubt, that the person did not carry out the conduct in self defence.

20
Q

Cite the legislation that relates to admissibility of evidence in criminal proceedings.

A

Section 142 of the Evidence Act.

21
Q

What is Doli Incapax?

A

Doli Incapax is a rebuttable presumption that children between the ages of 10 and 14 cannot have the mens rea to commit a crime. To rebut we must be able to prove that they knew it was seriously wrong, not merely naughty. For a child under 10 the presumption is irrebuttable.