Burden Of Proof And Standard Of Proof Notes

Evidence: April 1st: OUTLINE 3: BURDEN OF PROOF AND STANDARD OF PROOF Onus/Standard of Proof: Evidence Act has left this largely untouched. S28(2) Reliability. Judge must exclude confession unless satisfied on the balance of probabilities that it is reliable. S45, s46: Burden of proof is key to the admissability of identification evidence. Depending on the procedure of the cops in getting the identification evidene, if they don't follow proper procedure, the cops have to prove that the evidence is reliable. Evidential burden - not really a burden of proof. Just need to be able to point to sufficient evidence to justify going to the jury. Hansen: Elias CJ, good summary on burdens of proof, evidential burden. A party who has a burden of proof must establish the case to the standard required by the law, whether beyond reasonable doubt or on the balance of probabilities. The risk of nonpersuasion is borne by the party who carries the burden. Where the standard of proof is beyond reasonable doubt, the party with the legal onus of proof will not succeed unless he eliminates reasonable doubt. Who carries the burden of proof is determined by substantive law. He who carries the evidential burden is determined by the adjectival (procedural) law of evidence. This is the burden of raising an issue in the case by showing its relevance on the evidence. Lord Devlin "some evidence in support of such an answer must be adduced before the jury is directed to consider it; but the only burden laid upon the accused in this respect is to collect from the evidence enough material to make it possible for a reasonable jury to acquit" The evidential burden does not shift the burden of proof. Circumstantial evidence - creates an evidential burden on the party against whose interests the presumption operates by requiring him to point to evidence upon which the trier of fact could find against the presumptin. Tavete: - Argued soley on the basis of lack of murderous intent - Defence council made it clear to the judge that they were not relying on self defence - Self defence - intended to kill the person, lack of murderous intent conflicts with the self defence argument. CA says when there is evidence that supports a defence, e.g. self defence, the judge is required to put it to the jury. Criminal Cases: Crown puts evidence. Defence can stand up and say 'no case' submission - saying no reasonably instructed jury could convict on that evidence. Judge can agree, probably a gap in the evidence. If judge rules against, you can submit no evidence. If judge says there is some evidence on the point, he means don't bother with evidence, argue the case on not proven beyond reasonable doubt. What if you think the judge is wrong to refuse your nocase submission? If you appeal, you give up your chance to call evidence. What if you then call evidence that fills in the gap in the evidence?

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