Law of Evidence and Proof Flashcards
What are the three ways of giving evidence?
- Ordinary way: Orally in a courtroom in the presence of a judge or jury, or in an affidavit filed in court, or by reading a written statement in a courtroom.
- Alternative way: In a courtroom but unable to see the defendant, or outside the courtroom, or by video recording made before the hearing.
- In any other way provided for by the Evidence Act 2006 or any other enactment.
What is the Woolmington principle?
The Woolmington principle = the presumption of innocence.
Subject to specific statutory exceptions, the burden of proof lies with the prosecution in relation to all of the elements of the offence.
What are the exceptions to the Woolmington principle?
- Defence of insanity (legal burden)
- Express statutory exceptions
- Public welfare regulatory offences
How is the burden of proof discharged?
Prosecution vs Defence
Where the legal burden is on the prosecution, it must be discharged beyond reasonable doubt.
If the defence bears the burden, it need only be proved on the balance of probabilities.
What does ‘beyond reasonable doubt’ mean?
Honest and reasonable uncertainty in your mind about the defendant’s guilt after careful and impartial consideration of the evidence.
(R v Wanhalla)
What does ‘balance of probabilities’ mean?
It must be more probable than not.
If the probabilities are equal, the burden is not discharged.
What is the evidential burden on the defence?
Three points
- The prosecution is under no obligation to negate all possible defences.
- It is up to the defendant to point to some evidence that suggests an explanation, such as acting in self-defence.
- Where the defendant wishes to put up a defence, it becomes an evidential burden on the defendant.
What does having an evidential burden mean for the defence?
“Live issue”
Having an evidential burden means that a defence cannot be left to the jury or the judge unless it has been made a live issue by the defence.
It is not a burden of proof, and once it is made a ‘live issue’, the prosecution must destroy the defence, because the burden of proof remains with the prosecution.
The ultimate question for the jury is always, “has the prosecution proved its case?”
What was held in Woolmington v Director of Public Prosecutions (DPP)?
The prosecution has a duty to prove the prisoner’s guilt, subject to the defence of insanity and subject to any statutory exception.
The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
