Chapter 2: Overarching Concepts

Key Terms prosecutorial duty prosecutors are not meant to have a personal stake in getting a conviction. must conduct the case in a fair and detached manner that will ideally assist juries to arrive at a verdict based on the whole truth. - call all relevant and credible witnesseswhere a party elects not to call a witness an adverse inference can be drawn: Jones v Dunkel fact findereither the judge or the jury if there is no jury the judge decides all matters of law and fact if there is a judge and a jury then the roles are divided so that the judge decides on matters of law and the jury decides on matters of factchargeat the end of the case the judge summarises the arguments and explains the relevant law to the jury, including the burden and standard of proofvoir dire s 189'trial within a trial'- arises when a dispute about a question of law occurs during the proceeding. the parties are entitled to call, cross-examine and re-examine witnesses, and make legal submissions. This occurs whether or not there is jury, the judge must still make a finding. The grant of voir dire is discretionary, not a right. the party calling for it must first satisfy the judge that there are reasonable grounds and identify the issues.

Order of Proceedings party bringing the case goes first, the prosecution or the plaintiff calls their witnesses to attempt to establish their case, then the defence may provide witnesses of their own. 'examination in chief' is where the witness gives their account (whether a witness for the defence or the prosecution) 'cross-examination' where the opposing party probes and attempts to discredit or lessen the persuasiveness of the testimony. 're-examination' where the party who called the witness can clarify anything that arose during cross-examination.

Burden and Standard of Proof Burden (onus) of proofgenerally rests on the party asserting a matterburden of proof has two aspects: legal (ultimate) and evidential. legal: the level of persuasion that the evidence adduced by a party must reach in order for it to succeed in its case, governed by the standard. evidential: lower than legal, it is the level of proof that must be established in order for the relevant matter to be left to the jury. e.g before it is open to a jury to make a finding of self-defence, the defendant must first show some evidence that they felt threatened by the victim. Standard of proofcivil proceedings (legal burden): balance of probabilities, 50% +. supposedly the same in all civil matters, the greater the consequence of the finding, the higher the standard will be: s 140; Briginshaw v Briginshaw per Dixon J: reasonable satisfaction is not a state of mind that is attained independently of the nature and consequence of the facts to be proved. The seriousness, unlikelihood, gravity of consequence are considerations which affect whether an issue has been proved with reasonable satisfaction. criminal cases (legal burden): prosecution must prove matter beyond reasonable doubtwhere the legal burden rests on the accused, the standard is lower (balance of probabilities). rare for onus to be on accused, e.g., if pleading guilty on the grounds of mental impairment. meaning of beyond reasonable doubt- courts consistently refuse to elaborate on meaning, author argues with no apparent logical basis: should establish a percentage?admissibility of evidence:where a matter related to admissibility the standard is on the balance of probabilities. evidentiary burden: no universal formulation, but lower than the standard of probabilities. All that is required is that if viewed in most favourable light, it would establish a prima facie case.

Types of evidence Verbal, documentary, physicalverbal is the most common. documentary- emails, contracts, letters etc. physical- fingerprints, murder weapon etc. each type has specific requirements. facts in issueevidence is only admissible if it relates to a fact in issue. facts in issue are determined by substantive law (elements of a crime, etc.)can be relevant either directly or indirectly. directly:subject matter of the evidence relates to a fact in issue. e.g. witness in murder case states he saw the accused shoot the victimindirectly: subject matter of the evidences goes to the credibility of a witness. Credibility can be challenged either by alleging dishonesty or physical/mental infirmity. direct and circumstantial evidencedirect evidence: does not involve any implicationscircumstantial evidence: requires an inference from one fact to another, normally more than one possible explanation for the evidence. two types of circumstantial evidence-cumulative 'strands in a cable'prosecution does not need to establish each item of evidence individually beyond reasonable doubt. -sequential 'links in a chain'prosecution must establish all indispensable links beyond reasonable doubt. in a criminal case: where evidence is entirely circumstantial the accused must be acquitted if they can provide a reasonable alternate explanation. facts that do not need to be proved by evidencesome matters a court will assume are correct: - s 144- matters that are widely known to be true and not generally open to dispute e.g. common knowledge in the locality, capable of verification by reference to an authoritative document (dates/days of the week, rain, etc) a party can still challenge matters in this category but the burden is reversed. -s 143- judicial notice of matters so widely widely accepted that it does not need to be proved (sun rises each morning, winter is colder than summer)