Chapter 4

Question 1

What is the standard of proof in civil proceedings?

Answer 1

Section 140 case (facts in issue party bears burden: Dictionary) is proved if proved on BOP.
(2) Court must consider (without limitation)
(a) nature of COA or defence
(B) nature of subject matter of proceeding
(C) gravity of matters alleged

(2) reflects Briginshaw doctrine: seriousness of allegation, inherent unlikelihood if description, gravity of consequences from particular finding are all considerations: Qantas v Gama- the strength of the evidence necessary to establish a fact in issue in the balance of probabilities will vary according to the nature of what is sought to be proved

Recall also inferences Jones v Dunkel (failure call witness) and Browne v Dunn (failure to put to witness in cross)

Question 2

What is the standard of proof in criminal proceedings?

Answer 2

Not to find case of prosecution proved unless beyond reasonable doubt: s 141(1). Case of D on BOP: s 141(2)

Where built on circumstantial ev (evidence that requires an inference), jury direction that PBRD requires finding that only rational hypothesis from evidence is guilt: Shepherd v R

Where entirely reliant on circumstantial evidence if intermediate facts from available evidence that are “indispensable link in a chain of reasoning towards inference of guilt” those facts must be proved beyond reasonable doubt: Shepherd v R

Question 3

What is the standard of proof for admissions of evidence?

Answer 3

Facts necessary for deciding whether to admit evidence or any questions under EA are proved if proved on BOP: s 142. Matters Court to take into account include: (a) the importance of the evidence in the preceding and (b) the gravity of the matter alleged in relation to the question.

Question 4

How are matters of law proved?

Answer 4

Proof is not required about statutory provisions and dates etc: s 143. A judge may inform themself about those matters in any way see fit.

Question 5

How are matters of common knowledge proved?

Answer 5

Proof is not required about knowledge that is “not reasonably open to question” and is “common knowledge in the locality or generally” or capable of verification by ref to a document the authority of which cannot be questioned. Judge may acquired such knowledge as see fit and the court (including jury) may take into account. Judge must give such opportunity to make subs and refer to relevant information as necessary to avoid unfair prejudice. Section 144.

Question 6

Why presumptions are available for proving documents?

Answer 6

S 146: where documents are produced by (wholly or partly) a device or process that is alleged to have produced a particular outcome, if device ordinarily produces an outcome, presumption on this occasion it produced that outcome

S 147: business records produced by device/print process produced outcome asserted

S 148; presumed document attested/signed JP/lawyer/notary if required and purports to be so signed

S149: not necessary evidence of attesting Witnesd to prove doc was signed or attested as it purports to be

S 150 purported government deal presumed to have been duly sealed

S 151 imprint of a deal presumed to be duly affixed

S 152 documents purport to be more than 20 years old produced from proper custody presumed to be document purports to be and duly executed as purported

S 153 – government gazettes etc presumed to be what they purport to be
S 154 – parliamentary documents etc presumed to be what they purport to be
S 155 – official records presumed to be what they purport to be
S 156 / 158 – pubic documents presumed to be what they purport to be
S 157 – Court documents presumed to be what they purport to be
S 159 – official statistics presumed gathered etc by ABS

S 160 presumed postal item delivered four working days after posted (unless K specifies otherwise)
S 161 electronic communications sent to/from/at the time appears on document
S 162 letter grams and telegrams
S 163 letters from Cth agencies presumed sent 5 days after date on letter

Question 7

What is the effect of S 164?

Answer 7

Abolishes CL rule that certain matters require corroboration in criminal proceedings

Question 8

What can the judge so if evidence may be unreliable?

Answer 8

Other than ss 135-7

If in proceeding with a jury if evidence may be unreliable if a party requests the judge must warn and inform jury may be unreliable and why and of need for caution in accepting and weight

Question 9

Can the judge warn a jury about children’s evidence?

Answer 9

S 165a must not suggest children generally unreliable or less credible or reliable than adults or warn solely because if a child’s age

Question 10

How should the Judge direct the jury about a delay in prosecution?

Answer 10

Criminal proceeding if on application of a party judge is satisfied D suffered a significant forensic disadvantage because of delay in prosecution must direct jury as to nature of that and need to take into account: S 165B

Question 11

When can parties make requests wrt a previous representation, evidence of a conviction, or the authenticity, identity/admissibility of a document or thing?

Answer 11

Ss 166-169: can make reasonable requests about certain matters for the purpose of determining a question that relates to a previous representation, evidence of a conviction, or the authenticity, identity/admissibility of a document or thing (S 167). Types of requests S 166 and time limits S 168. Consequences of failing to comply set out in s 169.

Question 12

How do you establish facts where necessary for proof of contents, hearsay exceptions, facilitation of proof?

Answer 12

S 170 affidavit given by person in set out in s 171 and can be based on knowledge or belief S 172. Affidavit must be served reasonable time before and delineate can be called S 173

Question 13

How is foreign law proved?

Answer 13

Statute etc may be affixed by producing book or pamphlet appears to be reliable S 174. Common law by law reports: S 175. Effect of evidence wrt law to be decided by judge: S 176.

Question 14

Ancillary procedures for proof

Answer 14

Ss 177-181. Includes expert evidence may be given by certificate and evidence if conviction/acquittals/orders proved by certificate: s 178

Question 15

Can the court draw inferences from documents?

Answer 15

If q arise about application of provision to document or thing, Court can examine and draw reasonable inferences from (as well as from other matters): S 183

Question 16

Can the accused admit matters of fact and give consent?

Answer 16

Yes, but not effective unless advised to do so by lawyer or barrister or Court is satisfied understands the consequences: s 184

Question 17

Who can witness affidavits in courts exercising jurisdiction?

Answer 17

Justices of the peace, notaries republic and lawyers: s 186 of Cth Act

Question 18

Are bodies corporate entitled to privilege against self incrimination?

Answer 18

No: S 187

Question 19

Can the Court impound documents?

Answer 19

Yes S 188

Question 20

What are the rules regarding voire dires?

Answer 20

Preliminary determinations of whether facts exists for person of determining whether evidence admissible/can be used against a person or if a witness is competent or compellable have rules in s 189. Include:

Questions about admissions or discretion to exclude improperly/illegally obtained evidence determined in absence of jury
Jury not to be present at hearing to determine preliminary question unless orders otherwise

Question 21

Can the Court dispense with rules of evidence?

Answer 21

Yes certain rules can be dispensed with with the parties’ consent or in a civil proceeding if matter to which evidence relates not in dispute or application of provisions would cause or involve unnecessary delay: s 190

Question 22

Can parties agree facts?

Answer 22

Yes if in writing signed by parties/reps or presented to court with agreement: and evidence is not required to prove existence of agreed fact/cannot adduce evidence to contradict: S 191

Question 23

Are there certain matters the court must take into account in exercising powers?

Answer 23

Matters set out in s 192(2) must be taken into account when the Court grants leave, permission or give a direction:
o extent to which order would shorten / unduly lengthen the hearing
o any unfairness to a party
o importance of the evidence to which leave etc relates
o nature of the proceeding
o alternate to doing so – another order / adjournment etc

Stanoevski: must consider s 192 matters in deciding whether to grant leave, but the list is not exhaustive.
• judge erred in granting leave to prosecutor to XXN the defendant on her character by reference to a report
• judge did not consider the s 192 factors
• delay / length – relevant here, great deal of time taken up in pursuit of a collateral issue, not just in XXN but in chief, address and the judge’s summing up. judge should have considered added length of trial in deciding whether to grant leave.
• unfairness – XXN on the report raised grave possibility of unfairness to D. allowed extensive collateral inquiry by prosecutor
• importance of evidence – another matter that should be taken into account – the report was remote in time & different in nature from the offences charged, which diminished its importance

Failure to consider will not result in successful appeal unless miscarriage of justice: Stanoevski.

Question 24

Can the Court make advance rulings about operation of act?

Answer 24

• Court can if it considers it appropriate, make advance rulings about admissibility / operation of a provision of the Act / granting of leave, permission, direction etc
• open-ended discretion