5. Degrees of Proof Flashcards
Distinction between criminal and civil standards
Criminal: not certainty, but carry a high degree of probability – proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. Evidence so strong as to leave only a remote possibility in their favour
Dangerous to define or give further guidance on what “reasonable doubt” means, so long as jury not misled as to the nature of the burden of proof resting on the Crown
Civil: reasonable degree of probability, but not so high as is required in a criminal case. “we think more probable than not”, or “more likely than not”
“Probabilistic” reasoning is insufficient (95% chance bus was blue example)
Distinction between criminal and civil standards
Standards of proof in circumstantial evidence
In criminal cases: the facts must be such as to exclude reasonable hypotheses consistent with innocence
In civil cases: you need only circumstances raising a more probable inference in favour of what is alleged
Balance of probabilities and proportionate seriousness
The persuasiveness of one’s case may need to increase in proportion to the seriousness of the allegation (Briginshaw) - the nature of the issue necessarily affects the process by which reasonable satisfaction is achieved.
Degrees of proof with co-accused
Where evidence is equivocal between two co-accused, each of whom alleges that the crime was committed, in the absence of proved complicity between them each must be acquitted even though it is clear that one of them must have committed the crime.
Verdicts of guilt based entirely or substantially on circumstantial evidence
When the case against an accused person rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances exclude any reasonable hypothesis other than the guilt of the accused.
There is however not a “higher standard” required for circumstantial evidence.
If reasonable possibility consistent with innocence, jury should be directed to find not guilty (consistent with requirement guilt be established beyond reasonable doubt).
Jury’s consideration of circumstantial evidence
Jury should not consider items of evidence separately and eliminate them unless satisfied beyond reasonable doubt.
It is in the nature of circumstantial evidence that single items of evidence may be capable of an innocent explanation but, taken together, establish guilt beyond reasonable doubt.
Jury can only find a basis for inference of guilt if satisfied of the existence of that fact beyond reasonable doubt. Where evidence is circumstantial (whether civil or criminal), the jury is required to draw an inference from the circumstances of the case.
In civil: circumstances must “raise a more probable inference in favour of what is alleged”.
In criminal: circumstances must exclude any reasonable hypothesis consistent with innocence
Findings of guilt in circumstantial cases (Shepherd)
Although findings of guilt can be taken where circumstantial evidence is considered as a whole, any factual conclusions which are INDISPENSABLE LINKS in the chain of reasoning should also be proven beyond reasonable doubt.
For example: presence of accused when the crime was committed, often an intermediate fact which is essential before an inference of guilt could be drawn
Matters of fact in sentencing
Normally - judge cannot take matters of fact into account in manner adverse to accused’s interest unless those facts established beyond a reasonable doubt.
In Queensland (section 132C EAQ), possible for judge to do so provided allegation of fact is not challenged or, if challenged, can do so on balance of probabilities that allegation is true.
