Proof – Lecture 17 August 2015
(Kumar)
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standard
Prima Facie case
Judicial notice
Presumptions
Inferences from the absence of evidence
Warnings
Critical questions to proving a case
• What do I need to prove in order to succeed?
• How am I going to prove that? –
– Need to prove to a standard
Standard of proof
• EA applies
140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party
proved if it is satisfied that the case has been proved on the
balance of probabilities.
(2) Without limiting the matters that the court may take into
account in deciding whether it is so satisfied, it is to take into
account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.
Standard of proof - civil
• Section 140 – reflects common law standard
in Briginshaw v Briginshaw.
• Flexible test – ‘Court may take into account’ in
140(2)’
• Would the standard of proof for civil fraud be
higher than the standard required to prove
negligence?
141 Criminal proceedings: standard of
proof
(1) In a criminal proceeding, the court is not to
find the case of the prosecution proved
unless it is satisfied that it has been proved
beyond reasonable doubt.
(2) In a criminal proceeding, the court is to find
the case of a defendant proved if it is
satisfied that the case has been proved on
the balance of probabilities.
Distinction between direct and circumstantial
evidence in criminal cases
• Direct evidence – evidence which if accepted, alone
establishes guilt.
• Circumstantial evidence – evidence of a basic fact or
facts from which the jury is asked to infer a further
fact/s to find the accused guilty.
• Example in Pfennig v The Queen (1994) 182 CLR 462
use of evidence
• With direct evidence – submission to Court
is that “you should accept that this event
happened because a credible witness says that
they saw it happen”.
• With circumstantial evidence – “you should accept
that this event happened because the circumstances
suggest that it must have happened”
TJ direction on circumstantial evidence
• Guilt should not only be a rational conclusion but
also the only rational conclusion that can be drawn
from the circumstances.
• In other words, the jury must find the accused not
guilty if there is an inference consistent with
innocence, reasonably open on the evidence (R v
Knight (1992) 175 CLR 495).
• Common law requires a direction (not in EA).
Chamberlain v The Queen
• Crown case was that baby murdered in car.
• Scientific evidence that foetal blood in car
(this was disputed by defence experts)
• Held: 3/2 appeal dismissed.
• Gibbs CJ and Mason J – Foetal blood needed
to be proved BRD before could draw an
ultimate inference BRD of guilt.
Shepherd v The Queen
• In some cases it may be appropriate to direct
the jury that they must be satisfied BRD of an
“intermediate fact”.
• Eg in Chamberlain the intermediate fact was
that the blood had to be proven BRD to be
foetal blood before jury could find defendant
guilty BRD of murder
• Shepherd clarified Chamberlain.
• It is not necessary in every circumstantial case
to direct the jury that they may only draw
inferences against an accused from facts
which have been proved BRD, before they can
draw an ultimate inference of guilt BRD.
Prima Facie Case - civil
• Civil cases
• End of plaintiff’s case
• Test – is the evidence capable of proving on
BOP the plaintiff’s claim? Plaintiff’s case taken
at its highest.
Prima Facie Case - criminal
• End of Crown case
• Test – Is there evidence upon which the jury
could lawfully convict?
• Result – verdict by direction.
• Doney – TJ can not uphold a no case to answer
submission if TJ thinks CCA will set aside the
verdict b/c it is unsafe and unsatisfactory.
Judicial notice
• Sections 143 – 145
• Examples
Woods v Multi-Sport Holdings Pty Ltd
(2002)
[66] Facts that have been judicially noticed without inquiry include:
•that cancer is a major health problem in the community and,
despite research, little progress has been made in controlling it;
• that HIV is a life-endangering disease;
• that a child victim of sexual assault may be reluctant to resist,
protest or complain about the sexual assault, due to fear of
punishment or rejection; and
• that many lawyers now charge hundreds of dollars an hour for
their services, that legal aid is often unavailable to litigants in tort
cases and that the cost of those services is substantially increased
when lawyers cannot give advice to their clients because the law is
unpredictable.
• Facts that are judicially noticed after inquiry –
the use of extraneous material.
• Here , the use of statistics were used to take
judicial notice of recreational injuries.
Woods: Accident prevention and the cost of
injuries (Per McHugh J)
[62] Accident prevention is a major concern of Australian society. Injuries not only harm
individuals—often permanently—they also place enormous demands on our health services,
and this was the position in March 1996 when Mr Woods was injured. According to a report
on the costs of the health system for the years 1993-1994, “the direct health system costs of
injury and poisoning amounted to $2,601 million”. Given the number of injuries, the
enormity of this figure is not surprising. According to a national health survey:
“In 1995, 2.8 million Australians (16% of the population) had a current injury or
injury-related condition. This represented 18% of all people with a medical
condition.”
The same survey showed that in 1995 228,800 people “with a current injury or injury-related
condition had been injured most recently due to a sport or recreation-related activity in the
month prior to interview”.
[63] In my view, it is legitimate and in accordance with long-standing authority and practice to
refer to these statistics. They fall into the class of “legislative” facts that a court may judicially
notice and use to define the scope or validity of a principle or rule of law. They are matters
that “are not particular to the parties” and assist in defining the content of the principles that
govern this case and others like it.
Presumptions
• S 146 - 163
Inferences
• Jones v Dunkel inference – CL
• Comment on accused’s election to not give
evidence
• J v D in criminal cases
• Facts of Jones v Dunkel
The direction (per Menzies J)
[9] In my opinion a proper direction in the circumstances should
have made three things clear: (i) that the absence of the
defendant Hegedus as a witness cannot be used to make up
any deficiency of evidence; (ii) that evidence which might
have been contradicted by the defendant can be accepted the
more readily if the defendant fails to give evidence; (iii) that
where an inference is open from facts proved by direct
evidence and the question is whether it should be drawn, the
circumstance that the defendant disputing it might have
proved the contrary had he chosen to give evidence is
properly to be taken into account as a circumstance in favour
of drawing the inference.
• Jones v Dunkel
- An inference may be drawn that the evidence,
if called, would not have assisted the party’s
case.
- An inference may not arise where there is an
obvious explanation for not calling the
evidence (Fabre v Arenales)
Election of the accused not to give
evidence
• Section 20 permits comment.
• What does s 20 provide?
20 Comment on failure to give
evidence
(2) The judge or any party (other than the prosecutor)
may comment on a failure of the defendant to give
evidence. However, unless the comment is made by
another defendant in the proceeding, the comment
must not suggest that the defendant failed to give
evidence because the defendant was, or believed
that he or she was, guilty of the offence concerned.
Weissensteiner v The Queen (1993) 178
CLR 217
• Unusual factual matrix
• TJ direction on accused’s silence at trial
• failure of W to give evidence was capable of
strengthening the Crown case by enabling the jury, in
the absence of an explanation by W, to accept the
inferences for which the Crown contended as the
only rational inference from the evidence.
• (failure was taken to strengthen the Crown case)
Azzopardi v The Queen (2001) 205 CLR 50
(majority)
[61] What was important in Weissensteiner, and what warranted
the remarks that were made to the jury in that case, was that,
if there were facts which explained or contradicted the
evidence against the accused, they were facts which were
within the knowledge only of the accused, and thus could not
be the subject of evidence from any other person or source.
In other words, Weissensteiner was not a case in which the
accused simply failed to contradict the direct evidence of
other witnesses. If that were sufficient to warrant a direction
of the type given in that case, there would be, in truth, no
right to silence at trial.
Dyers v The Queen (2002) 210 CLR 283
[5] As a general rule a trial judge should not direct the jury in a
criminal trial that the accused would be expected to give
evidence personally or call others to give evidence. Exceptions
to that general rule will be rare. They are referred to in
Azzopardi. As a general rule, then, a trial judge should not
direct the jury that they are entitled to infer that evidence
which the accused could have given, or which others, called
by the accused, could have given, would not assist the
accused. If it is possible that the jury might think that
evidence could have been, but was not, given or called by the
accused, they should be instructed not to speculate about
what might have been said in that evidence.
[9]…... The conclusion that an accused could shed light on the
subject-matter of the charge is a conclusion that would
ordinarily be reached very easily. But given the accusatorial
nature of a criminal trial, it cannot be said that, in such a
proceeding, the accused would ordinarily be expected to give
evidence. So to hold would be to deny that it is for the
prosecution to prove its case beyond reasonable doubt. That
is why the majority of the Court concluded, in RPS and in
Azzopardi, that it is ordinarily inappropriate to tell the jury
that some inference can be drawn from the fact that the
accused has not given evidence. To the extent to which earlier
decisions of intermediate courts held to the contrary they
were overruled.
In summary
1. the accused’s silence in court is not evidence against him
or her
2. the accused’s silence does not constitute an admission;
3. the accused’s silence may not be used to fill gaps in the
evidence tendered by the prosecution;
4. that the accused’s silence may not be used as a makeweight (presumably meaning that it may not be used as a
stop-gap supplement) in assessing whether the prosecution
has proved its case beyond reasonable doubt.
5. The jury should be reminded that the onus of proof is on
the Crown to establish its case beyond reasonable doubt in
relation to all the essential elements of the charge which it
must prove.
• A Weissensteiner comment will only be
appropriate if there is a basis for concluding
that there are additional facts which would
explain or contradict either the evidence
relied upon by the prosecution or an inference
which the prosecution asks the jury to draw,
and if the additional fact or facts is or are
peculiarly within the knowledge of the
accused.
Warnings
Corroboration warnings
• Section 164 abolishes the common law
requirements in respect of corroboration of
certain categories of evidence.
Section 165 warnings
• 165(1) – section “applies to evidence of a kind
that may be unreliable”
• 165(2) – the warning to the jury
• 165(3) – judge need not warn if “good reasons
for not doing so”
• 165(4) – no form of words
• NOTE – Section 165A re children’s evidence
(judge must not warn ….)
Warnings under 165B
• (2) If the court, on application by a party, is
satisfied that the defendant has suffered a
significant forensic disadvantage because of
the consequences of delay, the court must
inform the jury of the nature of that
disadvantage and the need to take that
disadvantage into account when considering
the evidence.
Common law obligations
• A trial judge is obliged to give warnings and
directions to a jury if it is “necessary to avoid
the perceptible risk of miscarriage of justice
arising from the circumstances of the case”
(Longman v R).
• This is because “the overriding duty of the
trial judge remains to ensure that the accused
secures a fair trial” (Crofts v R)
• No closed list of situations in which a direction
or warning is required.
• Some examples are at page 521
Common law obligation – delay in
complaint
• Kilby v R (1973) HC – direction to the jury – “in
evaluating the evidence of the complainant
and in determining whether to believe her
they could take into account her failure to
make a complaint at the earliest reasonable
opportunity”.
• Also note section 294 of the CPA
Crofts v R
• Child sexual assault from 12/9/91 – 16/5/92
• Child complained on 22/6/93
• What direction did Crofts argue should have
been given by the trial judge?
• Is such a direction in the common law or EA?
• Does other legislation impact on the
direction?
• Delay or absence of complaint to be taken into
account to assess complainant’s credibility
• Delay in complaint and forensic disadvantage
to the accused