Jurisdiction
Queensland - Evidence Act (Qld) 1977
Commonwealth – Evidence Act (Cth) 1995
Offences against the Commonwealth but tried in a State court - Evidence Act (Qld) 1977 (s79
Judiciary Act (Cth) 1903)
Depends on which court had jurisdiction first – If appealed to the HC but started in Qld, then
EAQ applies
Burden of Proof
Persuasive burden – burden to prove the case or the issue at hand
Evidential burden – burden to raise sufficient evidence of an issue for it to be put before the
jury
Criminal cases:
• Prosecution has the persuasive burden of proof (Presumption of innocence)
• Must prove each element of the offence
• Evidential burden is on the accused to put into issue matters of defences,
excuses and justification
• Prosecution has the persuasive burden to disprove excuses (s23 QCC) or
justification (s271 QCC) (Woolmington v DPP [1935] AC 462)
• EXCEPTIONS – Defences (eg. Insanity, provocation (s304 QCC)) – the
accused has the persuasive burden (or whichever party seeks to put insanity
into issue)
• Standard:
o Beyond reasonable doubt
o BRD is not to be elaborated on for the jury (R v Chatzidimitriou (2000)
1 VR 493)
o Qld Benchbook SD-57 was approved as a direction for BRD in R v
BCC [2006] QCA 435
Civil cases:
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Evidential and persuasive burdens are together
BOP with the plaintiff to prove the elements of the cause of action
BOP with the defendant to prove the elements of the defence
Standard:
o Balance of probabilities (> 50%)
o The nature of the issue affects the process of achieving satisfaction on
BOP (Briginshaw v Briginshaw (1938) 60 CLR 336 – the more
improbable a claim seems the more evidence is required to prove it)
(Divorce case, wife accused of infidelity, The court held that even
though the BOP was the appropriate standard of proof, such an adverse
allegation against a woman required strong proof.)
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Standard of proof is sometimes specified in legislation. Eg.s170 of the Penalties and
Sentencing Act 1992 (Qld) and s13(3) Dangerous Prisoner’s (Sexual Offenders) Act 2003
(Qld).
Relevance
Probative value – the tendency of evidence to prove or disprove facts in issue
Relevance must be tested against issues in dispute.
Must have logical relevance – if one thing makes another more or less likely it is relevant
Legal relevance:
• Hollingham v Head (1858) 140 ER 1135 (K for bat poo, contracts with other
people not relevant as E for the current K)
• R v Stephensen [1976] VR 376
Distinguish relevance from weight
• Judge decides what is relevant, jury decides how much weight the E holds
1. Is the E relevant? – Yes. – E might be in.
2. Does an exclusionary rule apply? – Yes – E might be out.
3. Is there an exception to the exclusionary rule? – Yes. – E is in.
Circumstantial Evidence
Evidence that is directly relevant or circumstantially relevant
Direct evidence – offers proof of issue without any need for inference
Circumstantial evidence:
• Only has probative force by drawing inference
• Evidence of a secondary fact offered as proof of a principle fact
• Eg. Motive, credit, opportunity (not confession, eyewitness testimony)
Plomp v R (1963) 110 CLR 234:
• In wholly circumstantial cases only, A can only be found guilty if guilty
inference is only rational / reasonable inference available on all the evidence
• Jury should generally be given direction in those terms
• Dixon CJ, at 243:‘according to the common course of human affairs, the
degree of probability that the occurrence of the facts proved would be
accompanied by the occurrence of the fact to be proved is so high that the
contrary cannot reasonably be supposed.’
• Part of rule that guilt must be proved BRD
Wilson v R (1970) 123 CLR 334
• Man charged with the shooting murder of his wife.
• Claimed the gun discharged accidentally
• E of quarrelling in the relationship over a period of time leading up to the
incident held to be circumstantially relevant. (CJ. Barwick at 337, 339)
Chamberlain v R (No 2) (1983) 153 CLR 521
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Circumstantial evidence is cumulative
“united force of all the circumstances put together” Mason, Gibbs JJ – at p535
Shepherd v R (1990) 170 CLR 573
Facts: James William Shepherd was convicted before the Supreme Court of New South Wales of
conspiring to import heroin into Australia. The Crown case was that, at some time in 1976, a man
named Clark had initiated a conspiracy by setting up an organization which acquired heroin in
Bangkok, carried it to Singapore and then imported it into Australia through the agency of couriers.
The Crown contended that, after Clark's arrest in 1978, the accused on his instructions took over the
running of the organization. The Crown evidence fell into three categories. The first consisted of
evidence that after Clark and the accused were arrested, two under-cover police officers overheard
Clark tell the accused to take over the reins while he was in gaol. The second category consisted of
evidence given by accomplices. The third consisted of evidence concerning financial transactions
which the Crown relied on to prove that the accused and Clark shared the income of the organization.
Held Dawson J at [579] (Toohey & Gaudron concurring): If it is appropriate to identify an
intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be
found beyond reasonable doubt before the ultimate inference can be drawn. But where the evidence
consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a
warning. It should not be given in any event where it would be unnecessary or confusing to do so. It
will generally be sufficient to tell the jury that the guilt of the accused must be established beyond
reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt
where any other inference consistent with innocence is reasonably open on the evidence. [580] ... the
prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That
means that the essential ingredients of each element must be so proved. It does not mean that every
fact — every piece of evidence — relied upon to prove an element by inference must itself be proved
beyond reasonable doubt.
So held: if it is necessary for the jury to reach a conclusion of fact as an indispensable intermediate
step in the reasoning process towards an inference of guilt, that conclusion must be established
beyond reasonable doubt. Whether there is a need for a trial judge to identify such a conclusion and
direct the jury as to that standard of proof will depend on the circumstances of the case.
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Indispensable links in a chain must be proved BRD
Judge only required to direct jury to that effect if s/he thinks it necessary
Distinguish strands in a rope from links in a chain
Explained Chamberlain v R to mean that not every piece of E needs to be
proved beyond reasonable doubt if combined they are probative. (at 579,580.)
Directions to the jury for case based on Circumstantial Evidence - Qld Benchbook SD-46
Distinguish relevance from weight
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Structure of Evidence Law
1. Relevance – all relevant evidence is prima facie admissible, unless excluded
(not relevant = inadmissible)
2. Exclusionary Rules
! NB: Res gestae overrides exclusionary rules.
! Each exclusionary rule has exceptions – any apply here?
3. Discretions to exclude
! Unfairness
! public policy
! prejudicial v probative
4. Privilege:
• Procedural rules, burden of proof, testimonial rules, rules for protecting
vulnerable witnesses, jury instructions
“Voir Dire”
• Before or during the trial
• Generally outside of jury presence
• S590AA of the Queensland Criminal Code
In relation to facts which must be established in order to determine a question of admissibility,
the court only needs to be satisfied on the balance of probabilities: Wendo v R (1963) 109
CLR 559.
Hearsay
The evidence act does not define hearsay so the common law definition and rules apply.
The rule against hearsay is an exclusionary rule.
2 Requirements:
1. Out of court statement or representation – (intended to be communicative)
2. For the purpose of proving the truth of the statement’s contents
1. Out of court statement:
a. Verbal
b. Implied statements (unintended assertions) – (call for police implies need for
help/ in danger)
i. Ratten v R [1972] AC 378
c. Statements implied from conduct
i. Chandrasekera v R [1937] AC 220 (Conduct which is communicative
- a nod of the head indicating agreement or “yes”; or a shrug indicating
“I don’t know”)
ii. Manchester Brewery v Coombs (1900) 82 LT 347 – (Impliedly
communicative - throwing away beer, combined with statements that it
was bad beer & undrinkable)
d. Written Statements – documents (document defined in schedule 3 of the EAQ)
i. Myers v DPP [1965] AC 1001 – (The house of lords considered the
admissibility of microfilm records of a car manufacturer. The car
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maker recorded information about each car’s engine, chassis and block
number. As the car was assembled, a factory worker hand-wrote the
information on a record card and photograph’s of those cards were
later stored on microfilm. Lord Reid noted that this information was
hearsay because the company employee who was called to give
evidence had no personal knowledge of the correctness of the records.
He could only testify that the records had been compiled by others.
The purpose of admitting the records was to show that certain cars
allege to have been stolen had different engine or chassis numbers than
at the time of manufacture. In other words, the cars had been rebirthed.
To prove that, evidence needed to be adduced to show what the
numbers were at the time of manufacture; and that those numbers had
subsequently been altered. That means that the microfilm evidence was
to be adduced for the hearsay purpose of establishing the
truth/correctness of the records content.
ii. Re Gardner (1967) 13 FLR 345 affirmed the approach taken in Myers.
In Gardner the question was the admissibility of a used airline ticket to
prove that a person named on the ticket had travelled overseas. Gibbs J.
pointed out that the document only had probative value because it
spoke its contents. If the information on the ticket was accurate, it
tended to prove that the person named on the ticket had used it for
travel. The document was essentially an assertion of the truth of its
contents and that was the point of trying to have it admitted. It was
hearsay.
e. Can include witness’s own out of court statement
i. Cases go both ways but usually falls within rules of prior
consistent/inconsistent statements
2. For the purpose of proving the truth of the statement’s contents
a. Is the statement relevant?
b. What are the facts in issue?
c. What is the purpose of getting the statement admitted into evidence?
Hearsay evidence is second hand evidence. It is never as reliable as first hand evidence.
Rationales and Criticisms of hearsay evidence
a. Pollitt v R (1992) 174 CLR 558 (at 593-594, Brennan J. quoting Lord Normand in
Lejzor Teper v The Queen [1952] AC 480)
i. Hearsay evidence is not the best evidence.
ii. It is not delivered under oath.
iii. Its truthfulness and accuracy cannot be tested by cross
examination.
iv. The speaker’s demeanour cannot be assessed.
v. Easy to fabricate, hard to disprove
vi. Trial costs
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Original Evidence
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Evidence of state of mind or intention.
Does not meet the 2nd part of the definition of hearsay.
It is a statement admitted for a purpose other than to prove the truth of the
statement’s contents.
State of mind must be relevant to the facts in issue. (Eg. Speaker’s state of
mind, hearer’s state of mind).
Not an exception to the hearsay rule but, admitted as relevant evidence for a nonhearsay purpose.
Subramanian v Public Prosecutor [1956] 1 WLR 965 – state of mind is relevant because
subjective belief was an element of the defense of duress. (Subramanian was kidnapped by
terrorists who threatened to kill him unless he obeyed their orders. Those orders included
carrying ammunition for the terrorists during their jungle patrols in breach of various
weapons laws. S was charged with breaching those laws; the offence was punishable by the
death penalty. On appeal, E of the threats was held to be admissible as relevant to a defence
of duress. The purpose of adducing the E was not to prove that the terrorists actually intended
to kill the man (which would have been hearsay), but to prove S’s state of mind; S believed
he would have been killed if he had not complied with the terrorists demands).
Walton v R (1989) 166 CLR 283 – people generally carry out their asserted intentions (if
sincerely expressed). Statement was circumstantially relevant to show (with other E) that they
ultimately met as planned. Extended the scope of admissibility of this form of original
evidence. (A victim’s statement that she intended going to meet her estranged husband (the
accused) in town, was admissible as evidence of her intention (state of mind) to meet him in
town. This E was said to be relevant because the jury might infer that people normally carry
out their intentions; and if the victim had carried out her intentions on that occasion, she then
might have met with the accused as planned and he might then have had the opportunity to
kill her.)
R v Hytch [2000] QCA 315 – statements of intention to infer (circumstantially) that they met; and to
infer motive. ([26] According to Walton … a deceased's statements of intention are admissible on the
basis that generally people do not assert intentions they do not have and generally they will carry out
the intentions they assert. In this case, proof of the existence of [the victim’s] intentions is a step
towards proving that she met the accused on the night in question. It is a premise of this process that
the statement of intention was sincerely made. It is an inference from the existence of the state of
mind that the person had carried out the expressed intention. [27] The majority judgment of Wilson,
Dawson and Toohey JJ sets out the principle of admissibility in the following passage:
"Whilst it may be well established that statements will found an inference concerning a state of mind,
there are relatively few reported cases on the subject and its limits have not been fully explored... It
may be true in some cases to say that statements made by a person indicating his state of mind involve
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