Proof

Question 1

140 – Civil proceedings: standard of proof

Answer 1

In a civil proceeding, the court must find the case of a party proved if satisfied that the case has been proved on the BALANCE OF PROBABILITIES.

Without limiting the matters that the court may take into account, it must consider:

• the nature of the cause of action or defence; and
• the nature of the subject matter of the proceeding; and
• the gravity of the matters alleged.

Question 2

141 – Criminal proceedings: standard of proof

Answer 2

The applicable standard of proof is:

• ‘beyond reasonable doubt’ for the prosecution and
• ‘balance of probabilities’ for the defence.

Question 3

142 – Admissibility of evidence: standard of proof

Answer 3

Court may make findings of fact in relation to a question arising under the EA if satisfied on the BALANCE OF PROBABILITIES, unless another provision specifies otherwise.

When deciding whether to make such a finding of fact, the court must consider the importance of the evidence in the proceeding and the gravity of the matters alleged.

NB: s 142 only applies to deciding questions that arise under the EA. This includes:

• whether the maker of a previous representation is unavailable (s63 - s66);
• whether a person has specialised knowledge based on training, study or experience (s79);
• whether an admission was influenced by violent, oppressive, inhuman or degrading conduct, or threats of such conduct (s84);
• whether it was not reasonable to hold an ID parade, or whether the A refused to take part in an ID parade (s114, s115);
• whether evidence was illegally or improperly obtained (s138).

Question 4

165 Unreliable evidence

Answer 4

(1) Evidence in a civil proceeding that MAY be UNRELIABLE includes—

• hearsay evidence;
• evidence of an admission;
• ID evidence;
• evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;
• in a proceeding against the estate of a deceased person—evidence adduced by or on behalf of person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if they were alive.

(2) If there is a jury AND a party so requests, the judge is to—
* WARN THE JURY that the evidence may be UNRELIABLE; and

• inform the jury of matters that may cause it to be unreliable; and
• warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

BUT the judge need not give a warning if there are good reasons for not doing so.