R v Wardle is a case of verdict insupportable or unreasonable having regarding to evidence.

1. Jurisdiction and Relevant source of evidence law.

The Evidence Act 1995 (Cth) (CEA), Evidence Act 1977 (Qld) (QEA) and the Criminal Code 1899 (Qld) (Code) apply to cases dealing with grievous bodily harm (GBH) in Queensland. Common law will supplement the QEA. This court experience was invaluable for observing the rules of evidence in real life and seeing how legal practitioners apply these in court.

2. Main Facts in Issue and the Legal and Evidential Burdens of Proof.

The Crown has the legal burden of proving the offence beyond reasonable doubt (Woolmington)[1] and the evidential burden to tender evidence. If Counsel for the Defence (Defence) adduces evidence of an excuse, or is able to raise a defence on the balance of probabilities, the Crown must negate it beyond a reasonable doubt. In this case, the burden of proof lies with the prosecution to prove pursuant to s320 of the Code that Wardle did GBH and did so unlawfully. The jury must then satisfy itself beyond a reasonable doubt that the prosecution has proven all the elements of GBH and to draw inference and deduction with a reasonable conclusion as to whether the accused was guilty or not guilty.

Despite the fact that the Defence tried to adduce evidence that alleged GBH was negated by accident pursuant to s23 (1)(b) of the Code. The issue here is whether the accused did that GBH and that doing was unlawful. It was not the question of whether the complaint suffered GBH but what matters was the accused’s doing. The prosecution must negate the defence of accident, as it has the burden of negating the existence of authority, justification or excuse (Mullen).[2]

3. Role of the Judge/s and Counsel [including unrepresented parties] in calling and questioning the witness/es.

The Crown has an ethical duty to call his own “material” witnesses (Annewetey).[3] The trial process includes examination in chief by the Crown, cross-examination by the Defence and re-examination of witness by the Crown (Apostilides).[4] Here, the jury is the ultimate arbiter of fact but the judge controls what fact they are allowed to hear. The rules under which the judge does so called ‘the laws of evidence’.  The function of the judge is to direct the jury on points of law and to ensure that they are not to mislead by inadmissible evidence. The judge alone determines what evidence to accept, how important any evidence is and what conclusions to draw from all the evidence. Juries must then apply the law given to them to decide whether the accused was guilty of this charge. This statutory expression is found under s620 of the Code.

4. Any objections taken, Judicial Rulings thereupon and reformulations [outline any important objectionable questions/answers you identified even if no objection taken].

During the cross-examination, the Crown can ask leading questions in compliance with the rules in Brown v Dunn[5] to try to contradict the defence witnesses’ evidence-in-chief. In one witness’ evidence-in-chief, Judge Farr interrupted the Crown to suggest the line of questioning was irrelevant as there was not an issue of what the witness was wearing at that incident. His Honour suggested Council move on to the next question. That was the only objection taken for the whole trial.

5. Types of Evidence and how they were relevant to the Main Facts in Issue.

There were ranges of evidence at trial. Oral evidence of various witnesses whereby they provided verbal testimony that have either lived or knew the accused personally. Some witnesses provided direct evidence that they saw the alleged GBH and described the accident through their own five senses. Some others, who knew the defence personally, have testified to the good character of the accused. Photographs are considered as both real (Sitek)[6] and documentary evidence (Schedule 3 “document” (c) QEA) in Queensland. In trial, there was an issue as to whether some photographs provided by defence were classified as admissible evidence because those photos were not provided to the police station and the police officer could not recall any of those photographs. Therefore, these photograph evidence were ruled out by the Judge’s Order. I have attended many trials in the past, this is the first time I could apply evidence law theories to court.

 


[1] Woolmington v DPP [1935] AC 462.

[2] R v Mullen (1938) 59 CLR 124.

[3] R v Annewetey [1976] Qd R 161.

[4] R v Apostilides (1984) 53 ALR 445.

[5] Browne v Dunn (1829) 57 ER 909.

[6] R v Sitek [1988] 2 Qd R 284.

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