Class Notes (806,824)
Australia (1,850)
Law (441)
JSB171 (400)
All (349)

1. Preliminary & Admission of Evidence

6 Pages
Unlock Document

Queensland University of Technology

Preliminary Role of the Judge  Role—No pre-trial knowledge of evidence of case | Impartial umpire | Governs conduct of trial  Makes decisions on substantive law o no jury → makes findings on fact o Where jury → summing up on law and facts Asking Questions  May ask questions (has duty to ensure the evidence comes out in a fair and intelligible way)  BUT cannot ask so many that it takes over counsel‟s role of deciding how the evidence flows: Hsing (1984) (Drug supply—confession, contested as not proficient in English—expert commenting on reliability—judge asked 122 (cf 201); 46 (cf 52); 10 (cf 19) questions  conviction quashed) Calling Witnesses Criminal Cases  Adversarial System—generally up to the parties to collect & present evidence  Cannot call witnesses except in exceptional circumstances: Damic (unrepresented accused refusing to call evidence of insanity—judge called in psychiatrist)  Six principles set out in Apostilides (1984) (rape—witness with the man & woman immediately beforehand not called by prosecution—convicted  miscarriage of justice) o Generally it is the sole responsibility of the Crown to decide which witnesses to call o judge can question the prosecutor as to why they refuse to call o judge can ask the Crown prosecutor to reconsider their decision at the end of the case o judge can comment to the jury in the way that he or she thinks fit about the effect that the failure by the Crown to call those witnesses had on the course of the proceedings o only in exceptional circumstances that a trial judge can call a witness of their own volition  Mere failure to call by prosecution not enough o A failure by the Crown to call a witness will only be grounds to set aside conviction if it amounts to a miscarriage of justice  Where verdict unsafe or unsatisfactory Civil Cases  In civil cases the court may call witnesses: r391(1) UCPR (The court may, by order and on its own initiative, call a person before it as a witness in a proceeding) o And give directions about examination (C, X, R): r391(2) UCPR (The court may give the directions about examination, cross-examination and re-examination of the person the court considers appropriate) o And make orders on their expenses: r391(3) UCPR (The court may make the order it considers appropriate about 1 or more parties paying the witness’ attendance expenses) Role of Counsel  Duty to the client o Cab rank rule—cannot pick and choose clients—can only reject if unable to pay fees: Giannarelli v Wraith (Perjury—unfounded because lawyers hadn‟t realised that anything said to Commission couldn‟t be used against you—whether could sue barrister  not liable for decisions leading up to trial | duty to court)  Duty to the court overrides the duty to the client: Giannarelli v Wraith o Not to mislead the court Andrew Trotter LWB432 Evidence o Not to cast unjustifiable aspersions on witness o Not to withhold unfavourable evidence o Not to keep points up sleeve for appeal  Prosecution must make evidence known to defence: Annewetey (1976)  Barristers‟ immunity from suit: D’Orta-Ekenieke v Legal Aid Burden of proof = The responsibility of a party to introduce evidence in support of his or her case in order to persuade the tribunal of fact that the main facts in issue are established Types  Legal—On party alleging breach of substantive rights, to establish breach of substantive law  Evidential—on party with legal burden to establish main facts through evidence  De facto—Reality that evidence stacked against accused/defendant places onus on them to rebut that evidence Onus (Legal & Evidential) & Standard  Criminal o On Crown BRD: Woolmington v DPP (murder of exwife | defence of accident—just to scare her  onus on Crown ← accident an excuse not a true defence) s141(1) CEA  Does not apply in voir dire o Defence—on defence to raise BOP → on crown to negative BRD: s141(2) CEA ← Created by statute, prescribing that defendant must establish—eg insanity, one limb of intoxication o Excuse—on defence to raise on evidence → on crown to negative BRD: Woolmington v DPP (murder of exwife | defence of accident—just to scare her, crying suicide  onus on Crown ← accident an excuse not a true defence) ← accident, self defence, act independent of will, mistake of fact, one limb of intoxication  Civil o Balance of probabilities for all parties: Woolmington; s140(1) CEA o Criminal conduct alleged → clear, cogent or strict proof required (eg fraudulent misrepresentation): Woolmington; s140(2)(c) CEA (the court … is to take into account … the gravity of the matters alleged) No case to answer = Accused/defendant may allege “no case to answer” at end of Crown case  Question of law to be determined by the Judge/magistrate Criminal trial  if Crown has failed to prove an essential element: Dony (Provided there is some evidence, even if it is weak, tenuous or insubstantial, the Crown case has to go to the Jury)  Appeal—court can assess the weight of the evidence to determine whether unsafe and unsatisfactory  Effect—Direct verdict of not guilty Civil trial  if evidence does not allow the drawing of the inference of facts necessary to support the contention  Doctrine of election—Before can argue no case to answer, may have to elect not to call any evidence yourself  Effect—Judgment entered for the defendant Andrew Trotter LWB432 Evidence Admission & Identification of Evidence Identification of Evidence Facts in Issue  Main facts in issue = must be proven for plaintiff/prosecution to succeed (determined by substantive law: eg negligence—duty, breach, damage | murder—unlawful killing by accused with intent | contract—agreement, certainty, consideration, terms, breach)  Collateral facts = other relevant facts which do not go directly towards establishing action o Credibility of witness (eg bias or partiality) o Admissibility of evidence (eg testimony that contract lost; whether admission voluntary) o Facts affecting judicial discretion (eg murder weapon stolen by police from accused— should be kept from jury in exercise of discretion) ← standard of proof always BOP Methods of proof Direct Evidence = of itself directly prove facts  eye-witness account of fact  opinion of a witness in certain circumstances (e.g. expert witnesses) Circumstantial Evidence = does not directly prove any of the facts in issue  allows the drawing of inferences: R v Plomp (Murder of wife in surf—circumstantial evidence: no danger in surf; wife good swimmer, familiar with conditions; husband had promised to marry another woman, introduced to chn as new mother  could infer intent | appeal dismissed)  appeal should be allowed if primary evidence is unsafe: cf. R v Chamberlain („dingo ate my baby‟ case—circumstantial evidence only | evidence of foetal biologist of blood on car seat found unreliable on appeal  sufficient evidence for reasonable jury to deliver guilty verdict ← inconsistent accounts of disappearance; despite good character, lack of motive etc)  Includes acts before death: Lang v R (murder of husband—bought black dress before death, discussion with shop assistant that for husband‟s funeral) Means of Proof Testimony = original evidence of a witness of what they have directly perceived through the five senses about the relevant issues (↔ hearsay)  Oaths & Affirmations o Oath—on
More Less

Related notes for JSB171

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.