Chapter 4 - Burden of Proof and Presumptions Flashcards
What the four occasions when it is important to know which party has the burden of proof on an issue?
(1) where there is a dispute concerning the right to being calling evidence
(2) where there is a submission of a no case to answer
(3) the tribunal of facts is in doubt
(4) when an appellate court is considering the correctness of a judgment or the summing up the burden of proof
Explain the difference between the legal and evidentiary burden?
Legal burden: Is the obligation of a party to PROVE or disprove a fact in issue to the required standard (i.e. crown BRD)
Evidential burden: Is the obligation of a party to SHOW, if called upon, there is sufficient evidence to raise an issue as to the existence of a fact in issues.
How can the accused can discharge the evidential burden?
The accused bares the evidential burden to raise the excuse or defence. This can be discharged by the defendant giving or calling evidence or by pointing to evidence called by the prosecution.
Shifting burdens…
Legal burden can never shift in criminal cases. Defence (in crime) on BOP.
Party that bears risk of non-persuasion does until tribunal of fact decides on issue. (BRD by Crown, BOP by Plaintiff’s/Defendants).
Explain the concept of ‘presumptions’ (fact and law)
Presumptions of fact: Not true presumptions not rather, recurring circumstantial evidence they rest on a mere inference of probability which the court may draw on if all the evidence appears to be appropriate (presumption of continuance (speed), presumption of recently stolen goods, presumption of unseaworthiness if ship immediately sinks).
Presumptions of law: Irrebuttable - cant be contradicted by evidence (.e. fact child is under 13 presumption of law can’t be criminally responsible, certificate of incorporation presumption of law that all requirements to be a company have been met). Rebuttable - A conclusion must be drawn unless contrary is established (sanity, presumption of death if missing for 7 years ).
