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Week 2: Proof without New Evidence - Coggle Diagram

- - - - Recognition of the fact that in ordinary human experience a state of affairs that existed earlier is likely to have remained in existence at the time in question
        
        R v Buchanan [1966] VR 9
        R v Howarth [1972] VR 533
        
        May also be applied in reverse. The existence of a state of affairs in the past may be presumed from the existence of a state of affairs TODAY
        -Mason v Tritton (1994) NSWLR 572 - Aboriginal fishing rights
    - - The cause of the accident must be unexplained
        
        The incident is not one that, with common knowledge and experience, ordinarily occurs without negligence.
        
        The 'thing' must have been under the exclusive control of the defendant
        see Holberts Oyster Supplies Pty Ltd v Stephenson [2014] NSWSC 425
  - - - Woolmington v DPP [1935] AC 462 provides for beyond reasonable doubt.
        However, the doctrine requires that a person accusing another person of anything must prove it.
    - - A person purporting to act in a public role or office has been duly been appointed and the actions carried out validly done
        Dixon v LeKich (20101) 56 MVR 70
    - - In the absence of cogent proof otherwise, any child born in wedlock to the putative parents, who could have had access to each other at the time required when the child was conceived, will be deemed legitmate.
    - - Presumed to be accurate, but not infallible, unless and until one of the parties challenges the accuracy, there is a presumption the recorded reading was an accurate one.
      - The instrument must be one of a class that is 'notorious', in that it is used every day.
        see R v Anderson 1 Qd R 250 (BAC readings)
    - - s 29(2) Criminal Code
      - Unless evidence is provided that, at the time of the offending, a person under 14 carries the capacity to know or ought to know not to do the act, they will not be considered criminally responsible.
    - - s 10 of Criminal Code Qld
      - If the defence can show that a threat or promise was made to the accused before the confession was made, the Crown must prove it did not induce the confession. If it cannot the confession will be inadmissible.
    - - s 26 Criminal Code
      - The effect s 26 has on the accused is to place an onus on them to prove their insanity.
  - - - s 10 Criminal Code
      - The section provides an irrebuttable presumption of law that prevents prosecution of a person proved to be under 10.
    - - s 79 Evidence Act
      - This section establishes a rebuttable presumption in a civil court which states that a person convicted of a criminal offence in a previous court actually committed the act in question.
- - - - s 65 of the EA 1977 (Qld) provides the court may consult a published book or map where issues arise pertaining to territorial limits, locations of places or distances
      - s 66 allows for proof by certificate 'astronomical phenomena' such as sunrise, sunset and degree of twilight at a given time.
- - - - These are a series of questions that must be formally answered under oath.
- - - - Double jeopardy rule
        
        no person should be put on trial for more than one offence arising out of the same wrongful action
      - However, where multiple offences occur within the one action the prosecution will prosecute each offence.
      - This rule prevents the Crown reviving a matter where an accused has been acquitted by choosing a different charge.
      - s 17 Criminal Code
      - The section provides that a person cannot be retried in respect to an offence of which they have might have been convicted during a previous trial and that a person cannot be retried on a more serious charge out of an action that has already been the subject of a verdict.
      - R v El Zarw [1994] 2 Qd R 67
        Where E charged with murder, where E acquitted on grounds of denial under oath and alibi, where alibi was false and E perjured himself, where the Crown case claimed E falsely stated that he had not killed his wife when he had, where E is being called on to prove his innocence in the matter again, where the Crown was estopped on the grounds of 'abuse of process' and double jeopardy
      - R v Kahu distinguished, where K retried and convicted follow two hung juries, where K appealed conviction citing previous indecision of juries, where appellate court found that ;it is fruitless to speculate as to why a previous jury were unable to reach a verdict, and the later reached a unanimous verdict'.
    - - Arises when, during a new trial between A and B, A seeks to rely on finding of fact in A's favour to an issue which arose in a previous action between A and B.
      - Rogers v The Queen the HCA drew an important distinction in criminal cases between the ultimate issue of guilt or innocence and the evidentiary issue which forms the 'building blocks' in the proof of such ultimate issues (283 McHugh)
        
        An issue estoppel can only arise...in respect of an ultimate issue in the litigation. No estoppel can arise in respect of evidentiary issues even when they are the building blocks in the proof of the ultimate issue. (McHugh 283)
      - R v Storey giving effect to an acquittal does not require that the evidence admitted at the previous trial must be necessarily excluded because it might, in the absence of explanation, suggest to the jury the accused was guilty of an offence for which he was acquitted....so long as it was made clear to the jury that the prior acquittal cannot be challenged and that the evidence must not be taken as showing or proving guilt on the prior charge. (Aickin 42)
  - - - Conquer v Boot, C had contracted B to build a house in a 'good and workmanlike manner'. Subsequently defects appeared and C sued B for damages. C was successful, however following this litigation more defects appeared. C tried to pursue B again, however was unsuccessful with the court stating, that it was immaterial that C underestimated his loss in the first instance.
      - Further, in Henderson v Henderson, Wigram VC, ecause of action estoppel will be held:
        not only to apply to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged tot the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time
        
        Accepted in Australia in Port of Melbourne Authority v Anshua Pty Ltd
      - In Jackson v Golding Fullager said, where an action has been brought and judgment been entered in that action, no other proceedings can thereafter be maintained on the same cause of action.
    - - Blair v Curran, ' Dixon J at 531, [a] judicial determination directly involving an issue of fact or of law disposes once and for all the issues, so that it cannot afterwards be raised between the parties, or their privies.'
        
        Issues therefore, encompasses all those findings of fact on which the ultimate ruling in the previous case depended, but excludes all other issues of fact that may have been raised but were not essential to the ultimate issue.
      - Test
        
        For issue two to be successfully pled as issue estoppel
        
        The two issues must be identical
        
        Jackson v Golding distinguished from this
        
        Ramsay v Pigram affirmed the narrow interpretation in Jackson
        
        Miller v UNSW recent case where Assoc. Prof. able to proceed, not estopped
        
        The previous issue must have been an ultimate issue which was part of a final judgment on the merits
        
        Given it is essential to avoid conflicting judgments, those issues which have not been the subject of a final judgment do not attract the principle.
        
        There can no plea of issue estoppel in a hearing by a stat tribunal which does not regard itself as bound by the rules of evidence
        
        Theo v Official Trustee in Bankruptcy
        
        The parties must be the same and litigating in the same 'capacities'
        
        Finn v Lemmer prior common law action involving motor vehicle driver as defendant raised no estoppel in subsequent action against the drivers insurance company.
        
        The law will distinguish between actions taken by individuals, and action taken by them as trustees for others.,
        
        Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd
        willingness of the courts to distinguish between companies, their share holders and their directors so that one decision will not estop another
  - - - Estoppel does not strictly apply, as parties to the action are not the same as the prior criminal matter.Hollington v Hawthorn and Co Ltd [1943] KB 587 (the previous finding was the opinon of the jury
      - Ss 70, 80 EA 1977(Qld), provides relief such that it is admissible that the guilty verdict found in a prior hearing can be used as evidence in the new hearing that the person did do the act.
      - This is a rebuttable presumption of law
        
        In Pharmacy Board of Australia v Coghill, C was convicted of a fraud based on the finding he made made a statement that was false. Subsequently the Board was attempting to have C disciplined for unprofessional conduct based on this offence.
        
        QCAT found, based on evidence from C, that he genuinely believed his workers were covered by insurance, and the statement was not false. Even though the workers weren't covered. While he may have made a statement that was false, he was not aware it was false.
      - A subsequent civil matter does not need to arise from the same incident. The factual basis may be the target evidence in the later civil case
        
        Jacobsen v Suncorp Insurance and Finance (No 2)
        
        Action taken by employer over employee's dangerous driving conviction
      - S 80 of the EA provides that, when a defamation action ius brought, conviction the person did commit the crime is evidence that the person did commit the crime.
      - As a conviction does not estop a civil proceeding, an acquittal shall not estop either
        
        Helton v Allen (1940) 63 CLR 691 it was found that a prior acquittal of murder did not estop the defendant from being found that they did kill the testator in a civil court, on the balance of probabilities.
        
        at 710, his acquittal cannot operate as an estoppel. The plaintiff in the present proceeding is not bound by it as decisive of his innocence. Nor do we think it would be admissible against [the plaintiff] as an evidentiary fact.