Nick Dowse Elements of Evidence
Elements of Evidence – Structure of Answer
1. The process when answering an evidence question is:
a. Identify the facts in issue
i. What needs to be proved to show the guilt/fault of the party charged (called ‘main
facts in issue’)
ii. The main facts in issue are determined by the substantive law of the case, for
1. Contract: offer, acceptance, intention to create legal relations, consideration,
capacity, certainty, etc…
2. Tort: negligence: duty, breach, damage
3. Criminal law: elements of offence in Criminal Code.
iii. Main facts in issue must be proved by the prosecution (or the plaintiff in a civil case)
iv. The collateral facts in issue are those facts that will help win the case, but that are
not from the substantive law.
v. The three types of collateral facts in issue are those that:
1. Affect the credibility of the witness;
2. Affect the admissibility of evidence;
3. Determine the way judicial discretion will be exercised.
vi. Collateral facts in issue are governed by the rules of evidence, not the substantive
b. Identify the pieces of evidence available to prove the facts in issue
i. Direct evidence
a. Competence and compellability
i. Interpreters, children, vulnerable witnesses
b. Refreshment of memory from documents
c. Prior consistent or inconsistent statements
i. Exceptions to hearsay
e. Admissions and confessions
f. Expert witnesses
g. Opinion evidence
i. Exceptions to hearsay
b. Proof of execution, handwriting, attestation
a. Called “real evidence”
b. Photos, videos, murder weapon etc
ii. Circumstantial evidence
1. Motive, opportunity, habit, conduct
2. Propensity, similar fact evidence
iii. Collateral facts
1. Credibility of witness, admissibility of evidence, judicial discretion
c. Is the piece of evidence sufficiently relevant?
i. To be admitted into evidence, must be sufficiently relevant.
d. Is the piece of evidence admissible?
i. If it is caught by an exclusionary rule, it will not be received into evidence.
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ii. If prima face admissible, or is inadmissible but caught by an inclusionary rule, it may
be received into evidence.
e. Judicial discretion
i. Should the judge exercise discretion to exclude the otherwise admissible evidence
on the basis of fairness or public policy?
1. See “Judicial Discretion” notes.
2. Main Facts in Issue
a. The main facts in issue are the facts that the plaintiff/prosecution must prove to succeed,
as determined by the relevant substantive law.
b. The main facts in issue will also include facts required to establish defences or excuses.
c. Elements of murder (s 302(1) CC)
i. Unlawful killing (s 291); and
1. Means not authorised, justified or excused by law
ii. Intention to cause death or GBH required (s 302(1)(a)).
3. Collateral Facts in Issue
a. Collateral facts in issue are those which relate to:
iii. Whether judicial discretion will be exercised.
b. Collateral facts in issue do not need to be proved to succeed.
4. Burden and Standard of Proof
a. The burden, or onus, of proof is the responsibility of a party to introduce evidence in
support of his or her case. The goal is to persuade the tribunal of fact that the main facts in
issue are established.
b. The “legal burden” of proof is that which requires the proponent of a substantive issue to
prove it, or lose the case.
c. The “evidential burden” of proof is the obligation of a party faced with a legal burden to
adduce evidence to discharge the legal burden.
d. The evidential burden follows the legal burden.
e. Criminal Case
i. Legal and evidential burden on prosecution to prove offences BRD, and on accused
to raise defences on the BOP (or, with excuses, to raise some credible evidence)
and then on the prosecution to negative them BRD.
ii. Viscount Sankey in Wollington: “golden thread in criminal law means that an
accused does not need to prove their innocence, but rather the prosecution must
prove offences beyond reasonable doubt.”
iii. However, there is a de facto evidential burden on the accused when they raise
evidence of an defence/excuse
1. Insanity (defence)
a. The defence of insanity (s 27 Criminal Code) lays down a presumption
of sanity in s 26 Criminal Code which reflects the requirement that the
accused prove his own sanity in rebuttal of the presumption that they
were of sound mind at the time of the offence (McNaghten; R v
Porter). Because there is a presumption of sanity, the legal burden will
therefore be on the accused to prove the elements to the defence of
2. Intoxication (defence)
a. The defence of intoxication (s 28 Criminal Code) provides that s 27
(insanity) applies to case of a person who has not intentionally caused
him/herself to become intoxicated. Like insanity, the legal burden will
be on the accused to prove the elements of the defence of intoxication
in s 28.
3. Intoxication (excuse)
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a. The excuse of “intoxicated, no intent” in s 28(3) is an excuse. Once the
defence raises the excuse of act independent of will, the burden is on
the Crown to negative it beyond reasonable doubt – the legal burden
4. Diminished responsibility (defence)
a. Section 304A(1) Criminal Code provides a defence that has the effect
of reducing a murder charge to one of manslaughter in the case of an
accused proved to be suffering from an ‘