Prima Facie & Proofs Lecture

Question 1

What are the four options at the close of the prosecutions case open to the defence?

Answer 1

1. To made a Prima facie submission. (No case to answer submission) 1st leg May v O’Sullivan
2. To make a 2nd leg May v O’Sullivan submission
3. Prasad direction
4. Defence to call evidence

Question 2

What is Prima facie?

Answer 2

Each offence is divided up into elements, there must be evidence proving each of the elements to reach a Prima facie case.

Question 3

What is the first leg of May v O’Sullivan?

Answer 3

No case to answer submission. The burden of proof is on the prosecution from 1st to last.

It is concerned with the possibility of the defendant being convicted and not the probability. Could the defendant be convicted?

The charge will fail if there is no evidence.

Question 4

What evidence is to be considered on the 1st leg?

Answer 4

Only the evidence which militates in favour of the prosecution. The prosecution evidence is to be taken at its highest. It is a question of law. If rejected then the defence can call evidence.

Question 5

What is a second leg submission?

Answer 5

It is concerned with the probability of the defendant being convicted and not the possibility.

• should the def be convicted.
• question of fact.

Question 6

What evidence should be considered on the 2nd leg?

Answer 6

Evidence with all its weaknesses, and taking into account the evidence in favour of the defence.

Question 7

If a second leg submission is made, can the defence call evidence?

Answer 7

No.

Question 8

What is a Prasad Direction?

Answer 8

An invitation to a jury by a judge to find the accused not guilty prior to hearing the defence case. (It is not a direction, a judge cannot direct or force the jury to make a decision. It is simply an invitation.)

‘A verdict of guilt would be so unsafe or unsatisfactory, so manifestly unreliable that no reasonable jury could safely act upon it’

Key words

• safe
• unsatisfactory
• so unreliable.

Question 9

Does Prasad prevent the defence from giving evidence?

Answer 9

No. This is how it differs from a second leg submission. The defence can give evidence.

Question 10

When would a Prasad be used?

Answer 10

If there is a distinction between the existence of evidence and the reliability of evidence.

An unreliable DV victim who has admitted they lied on multiple occasions. It would be unjust to convict a person just on the unreliable evidence of the victim.

Question 11

Can prasad apply in the Local Court?

Answer 11

Doney v R says that it does not apply at the Local Court. It states that if Prima facie is evidence then it should be left to the jury (magistrate).

Question 12

What does DPP reference No 1 of 2017 (2019) HCA state?

Answer 12

If there is evidence (even if tenuous or inherently weak or vague) that is capable of supporting a verdict of guilty, the matter must be left to the jury.

Question 13

What is the civil standard?

Answer 13

140 evidence act is balance of probabilities

Question 14

What is criminal standard in prosecution case?

Answer 14

141(1) beyond reasonable doubt

Question 15

What is the criminal standard in a defendants case?

Answer 15

S 141(2) balance of probabilities

Question 16

What are the elements of obscene exposure?

Answer 16

A person
Within view from public place or school
Wilfully or obscenely expose
His person

Question 17

Who decides a question of fact?

Answer 17

Jury.

Question 18

Who decides a question of law?

Answer 18

Judge.

Question 19

Bruce Towers case is about what?

Answer 19

Pilot who cannot fly that type of plane.

The Court is only to consider evidence that, if uncontradicted and believed, could be accepted as proof by the jury.

Question 20

What does Doney v R say?

Answer 20

If there is any evidence for each of the elements then it should be left to the jury.

Question 21

What does Woolmingtons case say?

Answer 21

throughout the web of the English criminal law one golden thread is always seen, that is the duty of the prosecution to prove the prisoners guilt.

Question 22

What does section 142 cover?

Answer 22

Admissibility of evidence

Question 23

What is section 144 of the evidence act?

Answer 23

Proof is not required of common knowledge.

Question 24

What are the types of presumptions?

Answer 24

Rebuttable and Irrebuttable

Question 25

What is an example of a rebuttable presumption?

Answer 25

Doli incapax 10-14

Question 26

What is an example of irrebuttable?

Answer 26

Doli incapax under 10

Question 27

Outline Section 142 of the Evidence act- admissibility of evidence

Answer 27

• When deciding whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not, or any other question arising under this Act, has been proved if it is satisfied that they have been proved on the balance of probabilities.
• The court must take into account the importance of the evidence in the proceedings, and the gravity of the matters alleged in relation to the question.