law of evidence and proof

Question 1

ways of giving evidence in a proceeding

Answer 1

in the ordinary way - either orally in a court room in the presence of a judge/judge and jury, parties to the proceeding, counsel and members of the public allowed by the judge; or in an affidavit filed in court

in an alternative way - in the court room but unable to see the defendant or other person, outside the court room or by video record made before the hearing

in any other way - provided for by the EV 2006 or any other relevant enactment

Question 2

what was held in WOOLMINGTON v DPP

Answer 2

the woolmington principle establishes that subject to statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all elements of the offence

the presumption of innocence is known as the woolmington principle

Question 3

exceptions to the woolmington principle

Answer 3

offences that shift the burden of proof of specific defences to the accused are:

• defence of insanity s23 CA 1961
• specific statutory exceptions exist eg s202A of the CA 1961 provides defence where accused can prove the absence of any intention to use an offensive weapon to commit an offence involving bodily injury
• the offence is a public welfare regulatory offence

Question 4

what was found in r v wanhalla in relation to reasonable doubt

Answer 4

juries should be told that a reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence

Question 5

what is beyond reasonable doubt

Answer 5

it is the standard of proof required for the prosecution to prove its case. it means that jurors must be satisfied of guilt before they can convict.

Question 6

what is balance of probabilities

Answer 6

it is the standard of proof required for the defence to prove a particular element of its case. it means it must carry a reasonable degree of probability but not so high as is required in criminal case. if evidence is such that the tribunal can say we think it more probable than not the burden is discharged, if the probabilities are equal the burden is not discharged

it must simply show that it is more probable than not, if the probabilities are equal the burden is not discharged