Archive for Evidence

The evidentiary status of photographs

 

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Circumstantial case: the fact finding process

The Nominal Defendant v Cordin [2017] NSWCA 6
  1. In the present case there was a great deal of contemporaneous evidence that assisted in the task of ascertaining what happened in the accident. The trial judge considered this evidence in some detail but the approach he took was to consider each piece of evidence individually to see if it contradicted or was inconsistent with what was said to be Mr Cordin’s account. This case was a circumstantial case where it was necessary for the Court to consider all of the evidence and to draw conclusions from it viewed as a whole: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23], citing Kirby J in Jones v The Queen (1997) 191 CLR 439 at 466-467; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306 at [64]. As in a criminal trial the proper approach was for the tribunal of fact (a jury in a criminal trial and the Court of Criminal Appeal on an unreasonable ground appeal, or a judge sitting alone, as here) not to examine each piece of circumstantial evidence in isolation to demonstrate particular weaknesses but rather to view all of the evidence as a whole: Plomp v The Queen (1963) 110 CLR 234 at 242; The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46]-[48]; The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1 at [128].

Proof to the civil standard

Chen v State of New South Wales (No 2) [2016] NSWCA 292

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Tendency evidence

 

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Jones v Dunkel

S S Pharmaceuticals v Qantas [1991] 1 Lloyd’s Rep 288 at 293, Gleeson CJ and Handley JA said:
Where the inference of greater fault is open on the evidence we see no difficulty in drawing that more adverse inference where the defendant fails to call evidence. As Mr Justice Rich (who was part of the majority) said in Insurance Commissioner v Joyce, (1948) 77 CLR 39 at 49 where an inference is open and the defendant elects not to give evidence ‘the Court is entitled to be bold’.