Evidence - Burdens/Standard of Proof Flashcards
What is the definition of a legal burden?
MUST satisfy a court to the requisite standard or level, proof of a particular issue.
General rule: whoever bears the legal burden also bears the evidential burden on an issue.
If A wants to prove that B owes money to A, the A must first produce credible evidence that there is a debt owed.
What is the definition of an evidential burden?
MUST adduce enough evidence on an issue to warrant the court considering it.
Sometimes call the burden of passing the judge (to get an issue into the jury’s arena).
General rule: whoever holds the legal burden also holds the evidential burden. This rule applies without exception in civil cases.
What is the definition of a tactical burden?
It is a shifting burden. Once a party has adduced enough evidence to prove a relevant fact for the court to consider it a fact in issue, it is then the opponent’s task to disprove the relevant fact or present other relevant facts to dissuade the court drawing an inference.
Weissensteiner v The Queen (1993) 178 CLR 217 - the legal burden will never shift in a criminal case.
Criminal trials - an accused has every right to remain silent BUT there is every chance that this silence might operate tactically against them.
What is the standard of proof?
The amount and quality of evidence that is required to discharge the ULTIMATE burden of proof. The ultimate burden in this context being that of winning the whole case.
What is the difference between the burden of proof and the standard of proof?
Incidences of burden of proof is the term used to describe the way in which the burdens are identified and distributed between the parties to an action.
The standard of proof is the amount and quality of evidence that is required to discharge the ULTIMATE burden of proof. The ultimate burden in this context being that of winning the whole case.
What is the standard of proof in civil matters?
General Rule: Legal and evidential burden rests with the party who will lose on the action if no evidence is led.
- He who asserts must prove.
- Balance of proabilities.
- Rhesa Shipping Co v Edmunds [1985]
- Cth Evidence Act s140(1)
What is the standard of proof in criminal matters?
General Rule: Crown bears the ultimate burden of proving guilty ‘beyond a reasonable doubt’.
- Untouched by Qld/ CTH Acts
- One must assume that a jury is made up of reasonable people and that any real doubt which they entertain about the guilt of the accused is therefore likely to be a reasonable one, allowing them to acquit the accused.
- Woolmington v DPP [1935]
- Gonclaves v The Queen (1997)
- R v Cavkic (2005)
What is the benchbook direction about reasonable doubt?
A reasonable doubt is such a doubt as you, the jury consider to be reasonable on consideration of the evidence. It is therefore for you, and each of you, to say whether you have a doubt you consider reasonable. If at the end of your deliberations, you, as reasonable persons, are in doubt about the guilt of the accused, the charge has not been proved beyond a reasonable doubt.
- R v Irlam; ex-parte AG Qld [2002]
When does the defence bear the legal burden in a criminal case?
- Insanity
- Statutory provisions that place legal burden on the accused to establish a defence contained within that provison (e.g capacity)
Accused bears the evidentiary burden on all defences that either:
- Involve a suggestion of mental impairment; OR
- Provide the accused with a lawful excuse or justification (e.g self-defence, provocation, duress, honest and reasonable mistake of fact).
If the accused bears a legal burden, to what standard must they discharge this burden?
Balance of probabilities.
What happens if the accused leads evidence, or discharges the legal burden on an issue (such as a defence of insanity, duress, self-defence etc)?
The burden then shifts back to the Crown to negative.
Explain the presumption of sanity.
QLD s26
Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes into question until the contrary is proved.
i.e You are presumed sane unless you can prove otherwise.
Give two examples of express statutory exceptions which place the legal burden on the accused in a criminal case.
- Diminished responsibility s304A(1) of the Criminal Code provides a defence reducing murder to manslaughter BUT the defence has the burden to prove the facts which establish that defence.
- Lawful possession of a dangerous drug.
What is the standard of proof in sentence hearings?
Balance of Probailities.
BUT the degree of satisfaction required will vary depending on the consequences.
QLD s132C - Fact Finding on Sentencing.
(3) If an allegation of fact is not admitted or is challenged, the sentencing Judge or Magistrate may act on the allegation if they are satisfied on the balance of probabilities that the allegation is true.
(4) The degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true. (This sub-section follows the rule in Briginshaw v Briginshaw).
What is the burden of proof for disciplinary matters?
-Balance of probabilities.
-Requires a measure of flexibilty so that the more serious the allegation the higher the degree of probability that is required.
-Briginshaw v Briginshaw.
