Preliminary Role of the Judge RoleNo pre-trial knowledge of evidence of case | Impartial umpire | Governs conduct of trial Makes

es 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 counsels role of deciding how the evidence flows: Hsing (1984) (Drug supplyconfession, contested as not proficient in Englishexpert commenting on reliabilityjudge asked 122 (cf 201); 46 (cf 52); 10 (cf 19) questions conviction quashed) Calling Witnesses Criminal Cases Adversarial Systemgenerally up to the parties to collect & present evidence Cannot call witnesses except in exceptional circumstances: Damic (unrepresented accused refusing to call evidence of insanityjudge called in psychiatrist) Six principles set out in Apostilides (1984) (rapewitness with the man & woman immediately beforehand not called by prosecutionconvicted 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 rulecannot pick and choose clientscan only reject if unable to pay fees: Giannarelli v Wraith (Perjuryunfounded because lawyers hadnt realised that anything said to Commission couldnt be used against youwhether 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 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: DOrta-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 LegalOn party alleging breach of substantive rights, to establish breach of substantive law Evidentialon party with legal burden to establish main facts through evidence De factoReality 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 accidentjust to scare her onus on Crown accident an excuse not a true defence) s141(1) CEA Does not apply in voir dire o Defenceon defence to raise BOP on crown to negative BRD: s141(2) CEA Created by statute, prescribing that defendant must establisheg insanity, one limb of intoxication o Excuseon defence to raise on evidence on crown to negative BRD: Woolmington v DPP (murder of exwife | defence of accidentjust 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) Appealcourt can assess the weight of the evidence to determine whether unsafe and unsatisfactory EffectDirect 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 electionBefore can argue no case to answer, may have to elect not to call any evidence yourself EffectJudgment entered for the defendant

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 negligenceduty, breach, damage | murderunlawful killing by accused with intent | contractagreement, 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 surfcircumstantial 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 casecircumstantial 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 husbandbought black dress before death, discussion with shop assistant that for husbands 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 Oathon bible: s33 Oaths Act (said to bind the religious conscience of the witness) o Affirmationsecular oath, where: lack of or contrary to religious belief: s17 Oaths Act impractical to administer oath in form and manner required by a persons religion: s39 Oaths Act directed by judge because otherwise objects or appears incapable of understanding: s37 Oaths Act (because of defect in religious knowledge hmm a bit backward?) Interpreters o Court may order for defendant or witness where the interests of justice require: s131A QEA o Interpreter bound in manner determined by judge: s35 Oaths Act o s37 (affirmation because impractical) applies to interpreters: s38 Oaths Act o s39 (affirmation because objects) applies to interpreters: s40 Oaths Act

Documents = as proof that the words they contain are the assertions on the persons who signed the documents. On some occasions admissible even if no witness Generally must be original cant be cross-examined (duh, thanks Kelly) Usually incorporated in the testimony of a witness (witness asked to look at the document if made/acknowledged then words of document are evidence in own right) Without the admission, it would be inadmissible hearsay. Document is adopted by party by signature or oral oath Lost or destroyed secondary evidence of it is admissible Real Evidence = objects to examine to draw inferences (eg. View of site where the incident occurred) photos, videos, audio tapes, items on which forensic tests have been performed, views and demonstrations, etc Instead of relying on testimony or assertions in a document the jury or the judge draws their own conclusion from their own perception or what they see Admission of Evidence Admissibility Q of Law for the judge 1. Threshold test of relevanceWhether it would rationally affect the assessment of the probability of the existence of one or more of the main facts in issue as a matter of common sense and experience: Wakely and Bartley (possession of heroinevidence that police officer present at raid died of overdose of heroin relevant to whether accused in possession) o Matter so related to the issues that you would be able to give it in evidence may contradict the witness by calling other evidence: AG v Hitchcock o Relates to presence and capacity of a witness to observe events indirectly relevant: Hadlow o Relating to whether damage a result of acts or pre-existing: Goldsmith v Sandilines (car accidentevidence that plaintiff injured back 4 days previously playing cricket relevant || plaintiff denied rebuttal evidence concerning street of cricket centre) o If not, merely collateraleg towards credibility: Acts prior to evidence given: Hadlow (murdersheets found in dump with childs vomitdaughter gave evidence that bought, used at sheep station, & gave to accuseddefence led evidence that sheets never at sheep station evidence goes towards credibility onlydoes not affect probability of whether gave to parents) Reason for being in a certain place: Piddington v Bennett (negligent driving eyewitness saw driving quicklysaid was there to bank a cheque (not true) collateral issue because did not affect presence or ability || Latham J (dissent) may adduce evidence as to why impossible to see event (eg if not present, not capable)) 2. Not a breach of an exclusionary rule o Unless permitted under exception (inclusionary rule). ProcedureVoir Dire = inquiry into whether facts exist that found the decision to be made on such issues Held in the absence of the jury o Legal submissions are heard re admissibility and discretion o Hear evidence of collateral facts eg re whether confession voluntary | whether witness hostile | whether expert witness has expertise Qld State Courts question of whether a Voir Dire should be conducted is a matter of common law o At judges discretionneed not send the jury out if nothing would be said that might prejudice the conduct of a fair trial

o Prudence dictates that since it cannot be predicted what will be said, the jury should be sent out on all determinations of admissibility and discretionary exclusion: Demirok o Burden (CL)On the party seeking admissibility or exercise of discretion o Standard (CL)BOP Cth voir dire will be done for preliminary questions, in the absence of the jury: CEA s189 o Burdenon party seeking admission of evidence or exercise of discretion: s142 CEA o StandardBOP: s142 CEA

Weight and cogency (if no specific section applies) = its persuasive influence Question of fact Considerations: o Accuracycredibility of witness; misrepresenting or mistakenconsider: (s102 QEA) Whether statement/info made contemporaneously with event or fact Whether statement maker has an incentive to conceal or misrepresent o Relevance to determining issues in the case Evidence admissible on one ground but inadmissible on another can only be used for the ground on which it is admissible: Wilson o Must be a clear direction by the Judge/magistrate to the jury as to the use of the evidence: Wilson (Murder of wifehearsay evidence you are just trying to kill me for my money not relevant for intent | relevant to show nature of relationship direction to jury) Means of proof other than by evidence Formal admissions (Qld) CivilAdmission of facts through Notice to Admit (interrogatories): r165, 189 UCPR o Failure to deny in pleadings = admission: r166 UCPR o Amendment of pleadings only with leave of court, may have costs ordered against them o Effecttaken as conclusively proven: CL CriminalAccused; Crown with accuseds consent: s644 CC o Effectonly prima facie evidenceevidence can be called to qualify or contradict Judicial Notice = court can accept facts which are so commonly known that everyone would accept them as true without formal proof by evidence TestIf a fact can be ascertained by reference to sources whose accuracy cannot be questioned Generally two categories: o Common knowledgegenerally or in locality of case, not reasonably open to question o Verified by reference to document which is not reasonably open to question Includes an act of parliament: s43 QEA Specifically (Qld) o Courts may take judicial notice of: Part 4 QEA Public Seal of the State: s41 QEA Signatures of holders of public officer: s42 QEA Acts of Parliament and Statutory instruments: s43 QEA Administrative arrangements: s43A Specific Proof Certificate / public document incl copy = proof of its contents: s44 Gazette eg speed limits: s45 Presumption of accuracy of legislation: s46A Government printer: s46 Proof of public documents: s51 Act by minister: s50

Unallocated land grants: s56 Letters patent: s58 Lease / licence: s57 Wills by declaration: s63