Burdens And Standards Of Proof

Question 1

Introductory knowledge

Answer 1

Distinction between facts and the law.

The law is what it is.

Judge will tell the fact finder what the law is that they are applying.

If jury is fact finder then they will decide what the facts are to determine, given that law, what the outcome is.

If a judge is sitting alone then they do both those things. Figure out the law, then make a decision as to what has been proven in relation to the facts.

Question 2

Burdens and standards of proof:

Answer 2

The law is what it is, the judge will tell the fact finder, what the law is that we are applying, if the jury is the fact finder then they will find out the facts, given that lwa what the outcome is, if the judge is alone then they do both of those things.

Who gets to prove what and to what standard.

Who gets to prove what and to what standard.

Question 3

•What is the burden of proof?

•(a) It describes a type of depression which is not uncommonly experienced by lawyers with long term experience as prosecutors.

•(b) It describes which person has the job of proving what they claim. If they cannot do so then they automatically lose the case.

•(c) The burden of proof in criminal cases is “beyond reasonable doubt.”

Answer 3

The answer is:

Answer is B.

C is the standard of proof not the burden of proof.

The burden of proof refers to the fact that one party has the task of proving something to whatever standard of proof applies.

For example if they do not persuade the trier of facts are as they say, they lose. They have not established their case.

Question 4

What is the difference between the persuasive and the evidentiary burden of proof?

•(a) The persuasive burden lies on the person who must prove that their legal argument is correct and the evidentiary burden lies on the person who must prove that the facts are as they say.

•(b) The evidentiary burden lies on the person who wants to raise a legal issue for consideration in the trial. The persuasive burden refers to the person who must ultimately prove or disprove that issue on the facts.

•(c) These are two different ways of describing the person whose job it is to establish the case for guilt or innocence.

Answer 4

The Answer is:

(b)

Legal/persuasive burden ⇒ Who needs to prove the case.

Evidentiary burden ⇒ Who needs to adduce evidence to put an offence or defence in issue.

Evidentiary is a preliminary burden for who has the persuasive burden of proof.

The legal burden → the person who ultimately has to prove the case. is just the person who needs to put a fact in issue.

Persuasive burden is the ultimate burden of proof.

Evidentiary burden → preliminary burden where you are just putting an issue into the Court for whoever then bears the persuasive/legal burden of proof.

Question 5

Who generally bears the persuasive burden of proof?

•(a) The persuasive burden of proof, with very limited exceptions, lies on the Crown.
•
(b) The persuasive burden of proof, with no exceptions, lies on the Crown.

•(c) The persuasive burden of proof lies on the defence.

Answer 5

The answer is:

Generally the state bears the ultimate burden of proof, there are exceptions to that however.

The answer is A → Generally the state bears the ultimate burden of proof there are exceptions.

Question 6

Why does the persuasive burden of proof generally lie on the Crown?

•(a) Because of s 25(c) of the New Zealand Bill of Rights Act 1990.

•(b) Because of the common-law presumption of innocence.

•(c) The prosecution has all the resources of the State and is better equipped to discharge the burden than one civilian.

•(d) All of the above.

Answer 6

The answer is:

(d). All of the above. The common law rule that innocent till proven guilty stille exists, R has all the resources of the staetm and individual is tiny individual against apparatus.

S25 BORA → Accused innocent until proven otherwise.

Common law rule about innocent till proven guilty has been codified in the BORA and still exists in common law. State has all the resources at its disposal and defendant is just a civilian against that.

Question 7

Who generally bears the evidentiary burden?

•(a) The prosecution in respect of offences and the defendant in respect of defences.

•(b) The prosecution in respect of defences and the defendant in respect of offences.

•(c) The prosecution in most instances with a few limited exceptions.

Answer 7

Answer is A.

Evidentiary burden is different from persuasive burden. Not concerned about persuading the Court that something is right or wrong. Just producing enough evidence to make it an issue that we should examine in Court.

Lies on party that wants to raise something. If any party wants to say this is legally relevant then have to point to evidence showing this. When they discharge the evidentiary burden the regular persuasive burden applies.

Just put it in Court to be proven.

Evidentiary burden usually lies on the prosecution in relation to offences, because they charge people with things

Evidentiary burden lies on the defence with respect to defences, because they are the ones that want to raise defences.

Ridiculous to have crown to prove every conceivable offence when they charge someone even when irrelevant.

We ask that defence points to something that puts it in issue. Then the normal persuasive burden applies. Crown has to disprove it.

The evidentiary burden only really lies on the defence. Reason being that the crown has the ultimate persuasive burden of proof.

When raising offences has to prove them. Crown. Can just put them in issue. Have to prove persuasive burden.

Really the evidentiary burden only emerges in relation to defences. Defence has to put that defence in issue. Then Crown has the persuasive burden of disproving it, showing it doesn’t apply on the facts.

Question 8

Which of the following are expectations to the rule that the burden of proof lies on the Crown? Ie, which of the following are instances where the burden of proof lies on the defence?

•(a) Insanity defence: section 23
•(b) The common law defence of automatism
•(c) The common law absence of fault defence in relation to strict liability defences
•(d) Some limited statutory exceptions such as sections 134A(1) (defence to sex with a young person), 131B(2) (defence to meeting a young person following sexual grooming), 244 (defence to money laundering) and 202A(5) (defence to possession of offensive weapons or disabling substances)

Answer 8

All except (b)

Persuasive burden not just the evidentiary burden lies on the defence.

Defence has to not only put defence in issue and also prove it.

All except (B) are all exceptions to the rule that the persuasive burden of proof lies on the crown.

Question 9

What is the standard of proof?

•(a) When the burden of proof lies on the Crown it is to the standard of “beyond reasonable doubt”
•(b) When the burden on proof lies on the Crown it is to the standard of “more probable than not”
•(c) When the burden of proof lies on the Crown the burden of proof is to the “balance of probabilities”

Answer 9

The answer is:
•(a). This means that the Crown must remove all reasonable doubt as to the defendant’s innocence of the offences that they are charged with. If a reasonable doubt remains in the mind of the jury they must acquit the defendant. It also means that the Crown must disprove any defences that the defence has managed to put in issue.
•When the burden lies on the defence it is to the balance of probabilities. This means that they must prove that the facts that satisfy the defence that is being raised are more probable than not. This is the lower civil standard.

The Answer is (A). B and C state the same thing. B and C is the civil standard of proof. Criminal standard of proof is generally beyond reasonable doubt. Remove all reasonable doubt as the the defendant’s innocence as to the offences they are charged with.

If the jury thinks there is a plausible account that the elements of the offence have not been established, or elements of defence have not been disproved they must acquit the defendant.

Even if they have a doubt, this defence could have applied, could have been in reasonable self defence in the heat of the moment they are obliged to acquit.

However when burden lies on the defence, in those list of examples above for example. The civil standard applies. The defence only has to prove something on the balance of probabilities.

This means they have to satisfy the fact finder that their account is more probable than not. Defence. More plausible then the states account about what happened on the facts.

Question 10

Standards of Proof:

Answer 10

Beyond a reasonable doubt —> requires elimination of every reasonable doubt

Clear and convincing evidence —> firm belief or conviction

Preponderance —> more likely than not

Probable cause —> facts and circumstances lead an ordinary person to believe.

Reasonable suspicion —> specific and articulable facts

IN nz we have two standards of proof.

Beyond reasonable doubt → no plausible doubt. → Even if its small.

Balance → more likely than the crowns account.

Question 11

Presumption of innocence

Answer 11

•The presumption of innocence and the defendant’s right to silence mean that they can say nothing and “put the Crown to proof”.

Question 12

Burdens of proof

Answer 12

Because of presumption of innocence defendant has right to silence.

Crown has persuasive burden of proof, defence can say nothing and put the crown to proof.

As Defence Council you have a decision to make as to whether you put your client on the witness stand.

Usually defence council won’t make that decision until they see how the evidence is going.

Is Crown discharging their burden of proof.

Defence council wont put on witness stand unless desperate. Under Cross examination people don’t usually do well.

Witnesses start contradicting themselves cant remember details etc.

Defence council waits see how strong is the case? Is it looking good for client? Can you risk not putting them on the stand. If you put them on. Crown will make them look less credible.

If they dont take the stand you cant appeal on that basis.

Question 13

Silent Defendants:

Answer 13

Many silent defendants sit and allow the Crown to make their case.

Ewen Mcregor.

Scott Watson.

David Bane → murdering all his family. Conviction overturned by privy council.

Question 14

•Which case determined that the burden of proof in criminal cases lies on the Crown to the standard of reasonable doubt and what was the reasoning in that case?

•(a) R v Carlille
•(b) R v Neho
•(c) Woolmington v DPP

Answer 14

The answer is:
•(c): “Throughout the web of the English criminal law one golden thread is always to be seen….”

Willmington v DPP → Old decision, ancient common law from 1935.

Appeal case 462.

Used language → throughout web of English Criminal law one golden thread is always to be seen → duty of prosecution to prove the prisoners guilt, subject to any statutory exception.

If at end there is reasonable doubt as to whether the prisoner did the crime, the prosecution has not made the case, and the defence is entitled to an acquittal.

Prosecution has way better resources, forensic laboratories, and teams of police officers.

But stated clearly in Woolmington, → normative idea that it is better to convict many guilty than to convict an innocent person. Don’t want innocent people in our criminal justice system.

Question 15

•Do you think it is better to acquit 10 guilty men than to convict one innocent man?

Answer 15

Want to be absolutely sure, eliminate all doubt of your guilt before you go to prison.

Question 16

•At sentencing who has the burden of proving facts that are essential to guilt?

•(a) the defendant
•(b) the Crown
•(c) neither

Answer 16

The answer is:
•They don’t need to be proven (section 24, Sentencing Act 2002)

The Jury Verdict has already been determined. Cant argue as back in trial. Have to take jury verdict as it is.

Question 17

•At sentencing who has the burden of proving facts that are not essential to guilt but relevant to sentence?

Answer 17

The answer is:
•There is an evidentiary burden on the person who wishes to assert a fact “to adduce evidence as to its existence” (unless that evidence was adduced at trial)
•The persuasive burden lies on the Crown in respect of aggravating facts and any mitigating facts that relate to the nature of the offence or the offenders part in the offence (beyond reasonable doubt)
•The persuasive burden lies on the defence in relation to mitigating facts that are not related to the offending (such as the character, history or personal circumstances of the offender).
Evidentiary burden on person who wishes to assert fact to adduce evidence as to existence unless already adduced at trial.

Persuasive burden lies on the Crown in respect of aggravating facts, and any mitigating facts that relate to the nature of the offence, or offenders part in the offence (beyond reasonable doubt).

Persuasive burden relies on the defence → in relation to mitigating facts that are not related to the offending, such as character, history, or personal circumstances of the offender. → because those are within the defendants knowledge not the Crowns knowledge.

And to the benefit of the defendant not the Crown.

Question 18

Factual example:

Answer 18

•The accused was married to the victim for 25 years. They were preparing to go to bed and he said to her “Don’t worry darling the girls are not going to leave home and we are all going to be one big happy family.”
•She does not remember anything more. She came to in the room with him lying dead next to her and blood everywhere. Someone had attacked him with an axe. There were bloody finger prints all over the axe.
•She revealed to the police that her youngest daughters who wanted to leave home had told her in the last week that they had been raped by him since they were six. He had said he would never let her leave him. That day he raped them and said they would never be permitted to leave home.

Accused married to victim for 25 years.

Said don’t worry darling, girls not going to leave home. Gonna be happy family.

She does not remember anything more.

She came to. Hes dead next to her. Someone has attacked him with axe.

Police arrive and she reveals that youngest daughters said raped by him since six.

He said never permit her to leave him, and raped them and said never permitted to leave home.

Question 19

The Queen v R and R v Falconer:

Answer 19

•At issue is: Who killed him? Did they have the intention to kill him when they hit him multiple times with an axe? (Murder)
•If it was she who killed him, did she have the defence of automatism or self-defence (defence of another)
•Who has the evidentiary burden and in relation to what?
•Who has the persuasive burden and in relation to what?

Combination of the facts of the case of the Queen v R → case where woman killed her current husband with an axe in bed, and triggering motivation was he was having sex with their daughters since six.

And said darling the girls are not going to leave home. Which she thought he was not going to let go of him.

Combination with Falconer → In this case, domestic abuse, but in this case she shot her partner, and she came to, and she had a gun.

Need to prove who killed the victim. Did they have intention to kill him when they hit him with axe?

Did she have a defence. → Self defence? Or it might be automatism.

Conscious mind was not in control of her body. Meaning it wasnt her actus reus, she was an automaton.

Who has evidentiary burden and in relation to what? → Prosecution in relation to offences, and defence in relation to defences.

The accused must put in issue that she was acting as an automaton, some evidence to point to that, generally medical evidence.

And also have to put in issue the defence of self defence. Acting defensively and that was reasonable.

Crown has to establish that she was the one who wielded the axe. She was the one who caused his death. And if establishing murder, have to remove any doubt that she didn’t have the mens rea.

She either intended to kill him, or she was reckless about that. → Looks like quite a deliberate killing in this case. Struck with axe multiple times.

Who has the persuasive burden and in relation to what? → The persuasive burden relies on the Crown.

The Crown has the job of disproving self defence. If any plausible or reasonable doubt that she was acting in reasonable self defence you are obliged to acquit her, she gets the benefit.

Same with automatism → two defences where the burden lies on the Crown.

If talking about the defence of insanity that would be different → Reversed burden of proof.

Question 20

R v Neho:

Answer 20

•Section 24: The defence of compulsion
•An immediate threat of death or gbh
•From a person who is present when the offence is committed
•The accused must commit the offence in the belief that otherwise the threat will be carried out immediately
(The accused had no realistic choice but to carry out the offending)

Neho → the defendant owed $16,000 to wo.men who were gang affiliated, she owed it to mongrel mob wives. Had problem with gambling. Had a couple of daughters, they were quite young.

The mongrel mob threatened that she and her daughters would have retribution against them if she didnt pay back the money, and she had no capacity to pay back the money.

Her suggestion was to use stolen credit cards to go buy things on finance. Enter retail stores in Wellington. Get goods using the credit card and collect the goods.

Went to eight separate stores, and on the last occasion a shop assistant became suspicious.

Paying off her debt, owed $18 to $20 thousand dollars.

Each time she went and used these stolen credit cards her debt was reduced by $100 dollars.

Told police that Mongrel Mob had threatened serious harm to herself and her children. Daughters aged 7 and 9. And threatened to be sexually assaulted.

She went in. And said on each occasion there was a prospect. Threat reinforced every time she went into shop to carry out job.

Followed or proceeded by member or associate of Mongrel mob, and always one member of mongrel mob in store, but kept distance.

She thought that if she mucked up or walked out with goods she would be beat up. Believed it would happen straight away.

Evidence from shop assistant → that she was only person in store, and people weren’t outside.

Neho → Raised the defence of compulsion.

Compulsion → Available in criminal law, when your will has been overshadowed by someone else, even though committed offence, only because you cant say no. someone has forced you to do it.

Defence of compulsion → Set out in seciton 24 of Crimes Act.

Compulsion requirements → immediate threat of deatjh or GBH, from person who is present when the offence is committed, and accused must commit the offence in the belief that otherwise the threat will be carried out immediately.

For example → pointing a gun to your head.

CA in Neho → added requirement that accused has no realistic choice but to carry out the offending.

Trial judge did not leave the Defence of Compulsion with the jury. → Defence has not discharged the evidentiary burden, not pointed to enough evidence to put the defence in proof.

So the Crown did not have to disprove this.

Defence Council appealed to the CA → on basis that the trial judge should have left defence to the jury.

So the argument was that the evidentiary burden had been discharged, was the argument for the appeal.

CA said → We consider the evidence falls well short of the exacting standard required to sustain the defence of compulsion.

There is no evidence that the person or persons making the threats of harm to the appellant were present when the offence was committed.

Threat may be reinforced by others who are physically present when offence committed. The evidence in present case does not go beyond establishing that prospects associated with mongrel mob were waiting outside store.

And on each occasion another prospect was somewhere within the store. Keeping their distance from the applicant when the offending took place.

Evidence on this point lacked level of detail of what exactly happened on each occasion, even assuming the same modus operandi on each occasion.

Evidence does not establish that person making threats were sufficiently proximate to the appellant at the time of the offending to amount to the physical proximity or presence which must be established for the purposes section 24 (1).

Linked to this point is the immediacy issue. Clearly any physical assault on appellant was most unlikely to happen in the store, or even in the carpark outside. Or taken to other place where assault would occur.

Children were elsewhere, and no evidence they were under immediate threat.

Appellant’s offending occured on repeated occasions over a reasonably significant period of time.

On her own account the appellant said it was her own idea to repay her debt. If she did so willingly on the first occasion it would rule out the defence of compulsion in any event.

Even she were under some threat of serious harm. She had options available to her. UNderstand reluctance to call police. It was a reasonably available option to her prior to offending.

Also option to her to advise the shop assistant of her situation while she was in the store in each of these occasions.

Taken overall, insufficient evidence to go to jury of a continuing threat of immediate death or GBH, made by a person present while the offence was being commited, and it was in a position to carry out a threat or have it carried out then and there.

Question 21

Thoughts:

Answer 21

Could be unjust and incorrect or correct that the defence of compulsion is written way too narrowly potentially.

Shape of legal defences.

Court taking a very narrow reading in these cases.

Other jurisdictions have said constructive presence, Does nt have to be five minutes away to exercise influence on you.

Immediate threat could have happened shortly after, even if not in store or in carpark outside.

CA applying the standard of proof → not meant to be applying the persuasive burden of proof, just the evidentiary burden. The defence just has to point to some evidence. up to jury to decide whether or not the persuasive burden of proof has been discharged.

CA potentially may have applied the persuasive rather than the evidentiary burden of proof.

Question 22

•Who had the burden of proving what?
•Why was compulsion not left to the jury?
•Who can run an argument that the Court of Appeal applied the wrong burden and/or standard of proof?

(With regard to R v Neho?)

Question 23

The persuasive burden of proof:

Answer 23

•The party who bears the persuasive burden of proof has the task of proving to the court that the facts are as they say. If they are unable to do so then they have not established their case.
•
•The persuasive burden of proof generally, with a few limited exceptions, lies on the prosecution in criminal cases. This is because there is a presumption that the accused is innocent until the prosecution establishes that they are guilty.

Question 24

NZ Bill of Rights Act 1990:

Answer 24

S 25 Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
•(c) The right to be presumed innocent until proved guilty according to law.

Question 25

The evidentiary burden of proof:

Answer 25

•The person who has the evidentiary burden in relation to something is obliged to point to enough evidence to raise it as an issue in proceedings. It then becomes the obligation of whoever bears the persuasive burden of proof to disprove it in fact.

•The evidentiary burden lies on whoever wants to raise something as an issue.

Question 26

The standard of proof:

Answer 26

•Generally when the persuasive burden of proof lies on the prosecution the standard of proof is “beyond reasonable doubt.” In other words, has the prosecution eliminated all reasonable doubt that what they say is true?

•In those rare instances when the persuasive burden of proof lies on the defence the standard of proof is generally “the balance of probabilities”. In other words, is it more probable than not that what they say is true?

Question 27

Woolmington v DPP:

Answer 27

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners guilt subject to what I have already said about the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.

Question 28

Rationale:

Answer 28

•Constitutional right to be presumed innocent until proven guilty
•Better to acquit 10 guilty men than to convict 1 innocent man.
•The prosecution has better resources to prove guilt than the accused has to prove innocence.

Question 29

Exceptions to the rule:

Answer 29

•Insanity defence: section 23.

•Some other limited statutory defences. Eg, sections 134A (defence to sexual conduct with a young person under 16), 131B (defence to meeting a young person under 16 following sexual grooming), 244 (defence to money laundering), 202A (defence to possession of offensive weapons or disabling substances).

•The defence of absence of fault in relation to strict liability offences.

Question 30

S 23 (1) Crimes Act:

Answer 30

•Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved.

Question 31

Section 24, Sentencing Act 2002:

Answer 31

Proof of facts
(1) In determining a sentence or other disposition of the case, a court—
(a) may accept as proved any fact that was disclosed by evidence at the hearing or trial and any facts agreed on by the prosecutor and the offender; and
(b) must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
(2) If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—
(a) the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:
(b) if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the hearing or trial.

24(2) (c) the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
(d) the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence.
24(2)(d) will cover matters relating to the character, history or personal circumstances of the offender, for example.

24 (3) aggravating fact means any fact that—
(a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and
(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.
24(3) mitigating fact means any fact that—
(a) the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and
(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.