5194LAW Lecture Notes - Lecture 2: Grievous Bodily Harm, Affidavit, Best Evidence Rule
20 Jun 2018
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1. DIRECT AND CIRCUMSTANTIAL EVIDENCE
Evidence approach:
Jurisdiction?
Relevance?
Burden and standard of proof?
Rules for that type of evidence: circumstantial evidence
Exclusionary rule, discretion or privilege?
Is there an exception or limit to the exclusionary rule, discretion or privilege?
Are there any procedural issues to think about?
1.1. Direct evidence
- What is it? – Evidence that supports the truth of an assertion (in criminal law, an assertion
of guilt or of innocence) directly, i.e., without having to draw an inference.
- For example: a witness who testifies that she saw the defendant stab the victim gives
direct evidence.
oSomeone may not believe due to
Credibility
Character
1.2. Circumstantial Evidence
- Circumstantial Evidence: you have to infer relevant facts from related proven facts
oe.g.: you can prove that: only Jane knew where the ring was kept, it was there
yesterday and is now missing, she was alone in the house, she deposited $10,000 in
the bank, with no explanation.
oYou can’t directly prove that Jane physically took the ring, but a jury cold infer it
from the facts you can prove
oDon’t necessarily need direct evidence when there is enough circumstantial
evidence
- Only has probative force by drawing an inference
- Evidence of a secondary fact offered as proof of a principal fact
oExamples of secondary facts: motive, credit, opportunity (contrast: confession,
eyewitness testimony)
oNot necessary but may help for drawing an inference from the evidence available
-Plomp v R (1963) 110 CLR 234
oPlomp charged with murdering his wife, ‘she had died in surf down the coast’, he
was introducing girlfriend as wife before other wife died, unexpected rip that day
and she slipped away but no evidence that he tried to grab he swimsuit, no
independent witnesses, proof she was strong swimmer and weather was normal on
that day, insurance on her, went to judge to try marry new girlfriend before other
one proven dead. Lack of believability. Media coverage
oIn wholly circumstantial cases, accused can only be found guilty if guilty inference is
only rational/reasonable inference available on all the evidence
oJury should generally be given direction in those terms
oDixon CJ, 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.’
oPart of rule that guilt must be proved beyond reasonable doubt
oStrands in a rope case
find more resources at oneclass.com
find more resources at oneclass.com
Cumulatively all the strands stronger rope but by themselves not amazing
-Shepherd v R (1990) 170 CLR 573
oHeroin case
oIndispensable links (proof one fact for all others to be proven as well) in a chain
must be proved beyond reasonable doubt
Eg couldn’t prove that blood at crime scene was the charged
oJudge only required to direct jury to that effect if s/he thinks it necessary
oDistinguish strands in a rope from links in a chain
Didn’t find link in chain here but possible
o“As I have said, 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.”
1.3. Circumstantial Evidence: An example R v Baden-Clay
- For the Prosecution:
oGerard Baden-Clay’s affair
oHis financial stress (business debts of more than $500,000)
oPressure of double life about to be exposed by wife and mistress attending same
event, which may have ended in marriage breakdown and loss of his business
oScratches on his face (four forensic experts testified they were more consistent with
fingernail scratches than shaving cuts)
oDNA under Allison Baden-Clay’s fingernails (but also could have belonged to
someone else)
Proven inference that was his
oLeaves from 6 species on Mrs Baden-Clay’s body, all 6 present around the Baden-
Clay back patio, carport and driveway, only 2 near where her body was found
oDNA from blood in boot of the Baden-Clay car matched Mrs Baden-Clay’s DNA
oGerard’s mobile phone put to charge at 1.48am on night of death, though he
claimed to be in bed from 10pm
He put opportunity in issue by saying this
oHe hired a criminal defence lawyer on the morning his wife went missing and a
barrister when her body was found
- For the Defence:
oPointed out Mrs Baden-Clay’s history of depression to suggest she took her own life
oSuggested she may have died from “misadventure or accident” or because of
adverse Zoloft reaction
oClaimed there was no evidence to link Gerard Baden-Clay to Kholo Creek crime
scene, no blood in house or carport, no evidence of a struggle in the house
oRaised good character evidence (as a business man and community leader).
Mentioned one police officer said he was “one of the nicest guys in the world”
Putting that in issue, that means prosecution can oppose this with their own
evidence
Prosecution can attack their credit
oClaimed there was no evidence that he had an explosive temper or lashed out
physically at his wife
oAdmitted infidelity, and multiple affairs, but said that ‘ “despicable morals” did not
make him a murder.’
Jury returned a verdict of guilty.
find more resources at oneclass.com
find more resources at oneclass.com
The case was appealed to the Queensland Court of Appeal
Difficult with media coverage to have a fair trial
- Appeal to Qld Court of Appeal
oArgument by Appellant (Gerard Baden-Clay):
“his Honour should have directed the jury of a need for satisfaction beyond
reasonable doubt in respect of, firstly, the appellant’s having left Mrs
Baden-Clay’s body at Kholo Creek and secondly, the deposit of her blood in
the Captiva at the time of her disappearance”
“The appellant’s contention in respect of these grounds was that if the jury
were not satisfied that he put his wife’s body in the creek, they could not be
satisfied beyond reasonable doubt that he caused her death; so that that
matter was a necessary link in reasoning to guilt and had to be proved
beyond reasonable doubt. The argument in respect of the blood stain was
that finding that it had been left in the Captiva on 19 or 20 April, and not
before that, was an indispensable intermediate fact in reasoning to the
conclusion that the appellant had placed the body in the creek, so the jury
needed to be satisfied beyond reasonable doubt of that fact before they
could find that he had caused his wife’s death.
Without those two facts proven beyond reasonable doubt then not
possible to be proved to be murder
Both quotes R v Baden-Clay [2015] QCA 265 p10
oThe Court found:
“Neither prospective finding – that the blood was left in the vehicle on the
night in question or that the appellant placed the body of his wife at Kholo
Creek – was an indispensable fact to reaching a conclusion that he had killed
her. Both were capable of assisting to prove guilt, but neither was
essential”
Just more strands of rope
R v Baden-Clay [2015] QCA 265 p10
The Court listed the other evidence that would support a finding of unlawful
killing and said that it would also be sufficient if the jury was not convinced
about the blood or the appellant moving Mrs Baden-Clay’s body
Therefore, there was no error in the trial judge’s directions about the
evidence
This part of the CA findings was not appealed.
oArguments by Appellant (Gerard Baden-Clay):
“The appellant accepted that it was open to the jury to be satisfied beyond
reasonable doubt that he had unlawfully killed his wife, but contended that
they could not properly be satisfied of the necessary intent to murder.”
R v Baden-Clay [2015] QCA 265 p11
Remember the elements of murder:
Unlawful
Death
With the intent to kill or do grievous bodily harm
Court of Appeal found: Circumstantial evidence (motive for murder or just a
fight, no clear cause of death, meaning it could have been accidental,
consciousness of guilt) was equally consistent with unintentional death –
Crown appealed this finding to High Court
oAppeal to High Court
Jury could:
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Rules for that type of evidence: circumstantial evidence. Evidence that supports the truth of an assertion (in criminal law, an assertion of guilt or of innocence) directly, i. e. , without having to draw an inference. For example: a witness who testifies that she saw the defendant stab the victim gives direct evidence: someone may not believe due to. Only has probative force by drawing an inference. Evidence of a secondary fact offered as proof of a principal fact: examples of secondary facts: motive, credit, opportunity (contrast: confession, eyewitness testimony, not necessary but may help for drawing an inference from the evidence available. Cumulatively all the strands stronger rope but by themselves not amazing. Shepherd v r (1990) 170 clr 573: heroin case, indispensable links (proof one fact for all others to be proven as well) in a chain must be proved beyond reasonable doubt.
