Law Of Evidence And Proof

Question 1

3 ways of giving evidence

Answer 1

1. In the ordinary way:
   Orally in a courtroom in the presence of a judge or Judge and Jury, or in an affidavit filed in court, or by reading a written statement in a courtroom.
2. An alternative way:
   In a courtroom but unable to see the defendant, or outside the courtroom, or by video recording made before the hearing.
3. In any other way provided for by the evidence Act 2006 or any other enactment

Question 2

Burden of Proof

Woolmington principle

Answer 2

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.

Question 3

Exceptions to the woolmington principle

Answer 3

1. Defence of insanity (legal burden)
2. Express statutory exceptions
3. Public welfare regulatory offences

Question 4

Discharging the burden of Proof

Answer 4

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

Question 5

Beyond Reasonable Doubt

Answer 5

Honest and reasonable uncertainty in your mind about the defendant’s guilt after careful and impartial consideration of the evidence
(R v Wanhalla)

Question 6

Balance of probabilities

Answer 6

It must be more probable than not. If the probabilities are equal, the burden is not discharged.

Question 7

“Evidential burden” on defence overview - If the defendant may wish to put up a defence to the charge.

Answer 7

The prosecution is under no obligation to negate all the possible defences. It is up to the defendant to point to some evidence that suggests an explanation, such as, for example, that she was acting in self-defence.

Where the defendant wishes to put up a defence it becomes an “evidential burden” on the defendant.

Question 8

“Evidential burden” on defence overview - Live issue

Answer 8

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’ then 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?”

Question 9

What was held in Woolmington v Director of Public Prosecutions (DPP)?

Answer 9

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.