#8540 - Procedural Notes - Litigation 2 - Evidence Law

3 Procedural notes/ standard of proof/burdens/judicial notice/ 1

1. Standards of proof 1

(a) Civil standard: s 140 – 1

(b) Criminal standard: s 141(1) BYD 2

(c) Standard of proof for the voir dire: BOP s 142 – (eg for admissibility q: s 142(1)(a)) 3

2. Judicial notice: s 144 3

3. Advance rulings: s 192A: (16.25; 16.28-30) 4

4. Granting leave and the voir dire: 4

189 The voir dire 4

Leave permission or direction may be given on terms: s 192 6

Appendix 8

ANATOMY OF A CRIMINAL TRIAL; Clearihan 8

Notes on fair trial 10

CB: Granada taverns 11

• 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: s 140(1)

• (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.

• Trier of fact must feel an ‘actual persuasion’ of their occurrence or existence before they can be found: Briginshaw v Briginshaw (Dixon J).

• Strength of evidence necessary to satisfy civil standard depends upon gravity of allegations in case and consequnences for a party of its outcome: Briginshaw

  • Ie – where allegation of quasi-criminal nature is made against a party in a civil action, its existence must be proved ‘clearly’, ‘unequivocally’, ‘strictly’ or ‘with certainty’: Briginshaw.

  • Plaintiff will not succeed if circumstances merely give rise to conflicting inferences of equal degrees of probability: ACCC v Amcor Printing Papers

  • Take into account: seriousness of allegation made, inherent unlikelihood of an occurrence of a given description, or gravity of consequences flowing from a particular finding are considerations which must affect the answer

Cases

• Briginshaw; Neat Holdings ; G v H – 20.37-20.39.

• Briginshaw doctrine requires more than usual caution before making a civil finding (albeit on the BOP) which will have grave conseuqences, particularly if they reflect adversely on a persno’s character or honesty. HCA recently confined the doctrine to such cases: G v Hi

• Fatherhood of a child to a prostitute? In G v H H a prostitute had a child to G. G refused to comply with a blood test. FLA permitted an adverse inference to be drawn if it was ‘just’. There was no ‘serious or grave moral overtones’ for the putative father. Inference could be drawn that it was him because it was only him that she didn’t wear protection for.

• Duress by a company? In Granada Tavern v Smith

• Criminal standard is beyond reasonable doubt: s 141(1) (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.

  • 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: s 141(2)

Judge’s instructions

• HCA has cautioned trial judges against attempting to explain the term ‘beyond reasonable doubt’ to the jury and rejected any explanation or implies that reasonable doubt means rational doubt: Green v R

• Rule: Wise to give no direction at all: Southammavong, but where jury seek clarification on meaning of standard it is desirable for the trial judge to go no further than to say that a reasonable doubt is one that the jurors as reasonable people are prepared to entertain: Wilson

• Possibly: A jury could be warned against entertaining a ‘wholly fanciful’ possibility: Blanch; Solomon

• Errors by judges

  • Judge shouldn’t contrast proof beyond reasonable doubt with a state of ‘absolute certainty’ – this exercise put the wrong emphasis on the direction: Blanch and Solomon (where convictions overturned when judge did this)

  • Jury should not be invited to engage in ‘an analytic exercise dissecting such doubts as they may experience’: R v Ho

  • A direction referring to a ‘doubt in your mind, and it’s a reasonable one’: R v Li

  • A reference to a ‘doubt based on reason’: R v Li

  • Care should be taken in warning a jury against ‘entertaining a fanciful doubt’ not to invite a jury to subject any doubt they have to comparative analysis to determine whether it is reasonable or far fetched or fanciful: Graham

• Correct:

  • ‘The words ‘beyond reasonable doubt’ are ordinary English words and for obvious reasons they involve a very high standard of proof’: Anderson

  • ‘the words ‘beyond reasonable doubt’ are ordinary everyday words and that is how you should understand them’: Southammavong

• It would be permissible for judge to answer question that meaning of reasonable doubt was a matter for the jury rather than for some ‘independent’ character: Southammavong

Prelim question: is there a voir dire?

What the court is to do:

• Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding:

(a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not: s 142(1)(a)

(b) any other question arising under this Act,

have been proved if it is satisfied that they have been proved on the balance of probabilities.

• (2) In determining whether it is so satisfied, the matters that the court must take into account include:

  • (a) the importance of the evidence in the proceeding, and

  • (b) the gravity of the matters alleged in relation to the question.

• Rule: (1) Proof is not required about knowledge that is not reasonably open to question and is:

(a) common knowledge in the locality in which the proceeding is being held or generally: s 144(1)(a). (Knowledge should be so widely held so as to give rise to the presumption that all persons are aware of it: Holland v Jones although Holland does not accurately express the scope of s 144 because s 144 applies to local and general knowledge. Approach in Holland with respect to ‘particular’ facts probably does represent the position under s 144 so that ‘particular facts’ even if they are within the judge’s own personal knowledge, cannot qualify for judicial notice.)
OR

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(Enables court to look to: books, academic works, historical records whose authority cannot reasonably be questioned: Brantag (relied on Historiccal records of Australia and a book by Morley ‘black sands’) – see 20.75.

• (2) The judge may acquire knowledge of that kind in any way the judge thinks fit: s 144(2)

• The court (including, if there is a jury, the jury) is to take knowledge of that kind into account: s 144(3)

• (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced: s 144(5)

• Leave it open to correct mistakes: Judge must tell parties which works have been consulted and which conclusions drawn so that they may correct any mistakes or misapprehensions on the judge’s part: McAuslan

• 192A Advance rulings and findings: Where a question arises in any proceedings, being a question about:

(a) the admissibility or use of evidence proposed to be adduced, or

(b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or

(c) the giving of leave, permission or direction under section 192,

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

• [At CL: What advance determinations can be given: (a) advance ruling as requested in TKWJ v R and an indication in advance which provides the court with the scope to change its determination if necessary: R v TR.]

• Where to give: An advance ruling may be particularly useful to a party in a criminal case where an accused is contemplating raising good character or making an attack on the character of a prosecution witness.

• “If it considers it to be appropriate to do so”:

  • not if will appear biased: TKWJ – decided pre-uniform evidence act – advance ruling shouldn’t be given if a risk that it will give rise to appearance that trial judge is not impartial:

  • if serves efficiency of trial: in Adam – may be occasions when giving advance ruling, giving example advance on difficult questions concerning admissibility of evidence, can add to efficiency of trial.

  • If all matters relevant to issue have been ascertained and it is inevitable that a ruling will need to be made: TKWJ

  • Bad to give advance ruling on question fo whether leave would be given to prosecution to cross-examine own witness under s 38 – Adam . Decision whether to call person as prosecution witness is entirely for a prosecution. Affects impartiality for judge to be involved in decision as to whether or not to call witness.

16.33-16.37 – ss 189, 192, SM 192A

• Voir dire takes place as a interruption to the trial proper.

• Most jurisdictions provide for prelim questions to be determined prior to the comment of the trial and before jury has been sworn: CPA s 130; NSW District...