NO. l0 NOV 20il
By Mohan Dholl, Legol Studies Teocher, PLC Croydon, NSW
Critrle - Evidence and Defences
The State has much power and the citizens of a State must be protected fiom the arbirary abuse of power by the State. The law enforcemenr arm of the State can detain people suspected of criminal actMq', can
EVIDENCE ACT I 995 - SECT l4l - Criminat proceedings: standard of proof
interrogate, can lay charges and can bring matters before the courts. Given the dispariry of power beween an indMdual and the State it is important that the State power be limited through the imposition of standards on law enforcement officials. Several laws detaii how the police should conduct themselves in regard to criminal law matters.
Three such laws are,
ln a criminal proceeding,the couft is not ro find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.
(2) ln a criminal proceeding, rhe courr is to find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities.
Sourcez hnp:/ / www. austlii. cdu. au/ au,/le g1s/ rsw/ consol_act,/ ea 19 9 5 80/
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Law Enforcement (Powers and Responsibilities) Act 2002 Bail Act 1978 Evidence Act 1995
Law Enforcement (Powers ond Responsibilities) Act 2002
This law details the powers of law enforcement officers and conditions under which they can be used. Such powers include the power to stop and search vehicles and people, search and seize property, to get s per.son's identitv, tc use sniffer degs, tc set up ioa* blocks and stop vehicles, to manage traffic, to effect an arrest and use reasonable force whilst doing so, interrogare and lay charges, hold suspects for up to 4 hours without a detention warrant. Further, special powers are associated with management of public disorder.
Note that the standard of proof on the State (the prosecuting party) is beyond reasonable doubt. This is a very high threshold and guarantees that there is a limit on the abuse of power by the State. Note that the standard on the defence team is lower, on the balance ofprobabilities. This standard is appropriate as, if on balance the defer-ice case is likeiy to be right, then there must be enough doubt for the prosecution case to fail. In terms of defences this means that when the defendant or the accused brings a defence then the onus shift to them to prove that defence but only on the baiance of probabilities.
Evidence is material brought to the court by the parties in order to strengthen their version of the events under scrutiny. It may take a number of different forms:
Boil Act 1978
This law details the offences for which there is a presumption of bail and those for which there is not. Over time the presumption of bail has been weakened.
Physical materials such as documents (eg bank sratements and phone records), weapons, money, drugs, and other such things that strengthen the prosecution case;
Evidence Act 1995
This law clearly delineates the thresholds that must be achieved for proof of a civil offence and also for a criminal.offence. It also enunciates what evidence is admissible in court and the forms of evidence that are not acceptable. The standard of proof for criminal matters is detailed in s141 as follows:
Elecronic material such as video and CCTV surveillance footage, text message records, phone tap recordings, emaii downloads and the like;
The statements made by witnesses. These are written accounts or testimony of people who saw, heard and,/or were involved in the actMties. This evidence is subject to vigorous scruriny by the opposing party and to justification by the party bringing the evidence;
Expert testimony provided by expert witnesses. These are impartial experts called to the court to provide an expert professional opinion about evider-Lce. The prosecution team usually calls them in