Standard Of Proof And Briginshaw Principle In Evidence Act 1995 (NSW)

Types of Evidence under Evidence Act 1995 (NSW)

During any criminal incident, evidence plays an important part. Legally, evidence covers the burden of proof, admissibility, relevance, weight, and sufficiency to admit something in the records for legal proceedings. Evidence is observed to be a very significant part of every city as well as criminal proceedings which includes the blood, hair samples, video recordings, or the testimony of witnesses.[1] The Evidence Act 1995 NSW was formed in order to create consistency in treating the evidence by the court of law in every state or federal jurisdiction. Evidence can be defined as the information or objects which are different from legal submissions that help in proving or disproving the presence of any fact in dispute. Under the Evidence Act 1995, there are three types of primary evidence present testimony, documents, and real evidence.[2] In this paper, the standard of proof in civil as well as criminal cases related to the Evidence Act 1995 (NSW) will be discussed. Additionally, the Briginshaw principle will be explained in relation to Evidence Act 1995. The evaluation of the Briginshaw principle in civil proceedings will also be highlighted.

In order to pursue the case in court successfully it is necessary for the evidence to be strong and provide backup. There is a need to prove the case with strong evidence. Evidence can be of different forms like it can be a document, video, sound recordings, or statement of a witness. Oral statements can also be presumed as evidence made by witnesses in court. In order to prove a fact in the issue, it is required the make a legal case. Moreover, there are many elements for evidence to be legal. For instance, in case of negligence, the party must know that another party is under the obligation of care and if the other party breached the duty of care the first party will suffer the damage.[3] This leads to a breach of contract where the plaintiff has to show the existence of the contract and the elements of the contract to be legal. This fact in issue is the first element of the Evidence Act. The second element is the admissibility and relevance of the evidence given. According to the above example of negligence, the party must prove the point using current and indirect concern with the case as the observation, perception, and description is the relevant kind of evidence. However, circumstantial evidence can also be used to draw inferences for instance past habits, or the presence of any motive. Another element in order to present the legal evidence in the court depends upon the burden of proof.[4] Generally, an individual who brings the action or claim to court has the onus to prove it. The plaintiffs have the burden to prove the case by providing the evidence for the case. In civil cases, this is known as the balance of probabilities which means the claims made are probable or not. However, the burden of proof is not same in the criminal cases as it is known beyond a reasonable doubt. Here the evidence must be provided by the prosecution based on the absence of doubt in the mind of a person.[5]

Standard of Proof in Civil and Criminal Cases

Standard of proof has been defined as the claim or assertion in the trial in order to establish the degree of evidence. In the case of criminal proceedings, the court lays emphasis on the prosecutor to provide the burden of proof to prove the charges however, in the case of civil cases plaintiff has the responsibility of the burden of proof. This burden of proof in criminal cases must be proven beyond reasonable doubt whereas in the case of civil proceedings it is based upon the degree of probabilities. Reasonable doubt can be defined as the state of mind of the judges who cannot form a firm decision after observing or analyzing the cited evidence.[6] In the case of criminal proceedings, there is a need require a high degree of satisfaction by the prosecution through proper evidence and materials presented in the court. However, in case there is any doubt that occurs in the mind of the jury then the accused will be given the benefit of doubt and his or her innocence will be announced. The standard of reasonable doubt is essential in criminal trials in order to punish if the person is guilty whereas in such cases it is essential for the state to not impose disciplinary force on the person who can be proven innocent. In the case of civil proceedings, the standard of proof is based upon the balance of probability to impose the charges on the opposite parties. In the case of a civil proceeding, it is the judge who is under the obligation to make the decision in favour of the party who had provided the proof of prevalence.[7] However, this condition did not say that the evidence provided will eliminate that evidence from the doubt. In the case of civil proceedings, the balance of probabilities is maintained based on the two steps. In the first step surety based on probabilities is maintained whereas in the second step the court weighs them. Therefore, the balances of probabilities are based upon the support of the existing fact. For instance, in the case that impacts the status of the party, it is required to closely analyze the probabilities as compared to the loan based on promissory note the evidence provided must be based upon the nature and gravity thus the decision must provide reasonable satisfaction to the truth.

Briginshaw principle is often misunderstood as the third criteria to prove a case apart from the balance of probabilities as well as beyond reasonable doubt in case of civil and criminal proceedings respectively. However, this assumption of the Briginshaw principle to be the third standard of proof is not correct.[8] This principle provides some flexibility in the case of civil proceedings which means that the evidence based upon the reasonable probabilities in the case of civil proceedings might differ on the basis of the nature of the issue that has to be proven as observed in Neat v. Karajan Holdings.[9] In this case, the high court of Australia held that the probability of the allegation must be the core basis for the decision-maker to satisfy themselves related to the persuasion of the facts in the case. In other words, the seriousness of the allegation is directly proportional to the concreteness of the evidence. There are three elements of the Birginshaw principle first is related to the nature and in-built doubtfulness of allegations, and the outcomes generated from the results of the facts. This principle has been incorporated in section 140(2) of the Evidence Act 1995 (NSW). In this section, it has been stated that the court while deciding any case in conflict three factors must be taken into consideration. The first one is related to the nature of cause of action or defence, the second one is the nature of the subject matter related to the issue and the third one is the seriousness of the alleged matters. In case of criminal proceedings, the briginshaw principle is applicable as the council is under the obligation to make the submissions of the evidence based on the above three factors stated under section 140(2).[10] In case of unreliable or improperly obtained evidence, this principle is applied and the evidence-based on the above three factors is taken into consideration. If the evidence is not based upon the Briginshaw principle then the reliability and the seriousness of the misbehaviour will get impacted and the judicial officer will lack the feeling of actual inducement and reasonable satisfaction.[11]

Briginshaw Principle and Its Application

The briginshaw principle is based upon the fact that more convincing evidence has to be provided in any case which helps in meeting the standard of proof in case of serious allegations or in case of any issue which did not take place. However, in the case of civil cases, the briginshaw principle does not amend the standard of proof in case of civil proceedings. The reason behind this possibility is due to the requirement for more strong evidence to prove the allegations in a serious case so that cause of action can be adduced.[12] Therefore this principle is more accurately applied in case of fraud and dishonesty. This could be exemplified in the decision of The Estate of Shirley Gardner Bernengo v. Leaney (2019) NSESC 1324.[13] The dispute is based upon the de facto partner having a secret relationship with the defunct. The reason behind keeping the relationship between the two secrets is that the plaintiff has been in another relationship with the daughter of the deceased person. In this case, the defendant stated that the relationship was unusual in nature and possesses the unlikelihood of its existence according to the briginshaw principle. However, it has been observed that more substantial evidence was needed to ascertain the relationship. in this case Justice Bell P stated that briginshaw theory is applied in the cases of fraud and dishonesty but the nature of the claim, in this case, was not serious and do not produce any persuasive evidence to help the judge make clear decisions. Moreover, the judge has observed that the claim was based on the balance of probabilities rather than any core evidence based on the seriousness of the offense thus it can be concluded that the briginshaw principle is not applicable in civil cases. 

In other words, it could be established that this principle is not applicable in the civil proceedings as this principle helps in rendering accurate decisions in a case where serious allegations are applied to the party as in criminal offenses. Whereas civil cases are not so grave and the damages provided in such cases are based on the penalties or specific relief.[14] The civil disputes are based upon the infringement of civil rights whereas the criminal cases are against society at large and thus have been observed as grave in nature. Thus, to provide any conviction in a criminal case the judicial officer have to analyze and observe the evidence carefully to provide accurate punishments.

Conclusion

In the end, it can be concluded that despite the fact that the bar of beyond a reasonable doubt is maintained, it is determined that the evidence must be able to show the facts. Because the balance of probability standard is lower than the level employed in criminal trials, it cannot be reasonably argued that the severity of the problem in civil matters is not paid appropriate respect. The Courts have often received requests to establish a third standard of proof that would fall midway between the criminal and civil standards. Even while it appears that this may be a viable option in unusual scenarios, such as a criminal allegation in a civil dispute. With two standards in place, there are still some grey areas, so a third standard may not be the wisest option at this time. Thus, in the case of a criminal case, the court is under the obligation to take appropriate steps in order to identify relevancy and ensure the accuracy of justice delivered. Whereas in the civil proceeding the parties are responsible to present the best evidence so that the court can deliver the best decision based on the evidence provided as the penalty imposed in criminal cases are more severe as compared to civil cases thus Briginshaw principles is more applicable in criminal cases than civil ones. 

References 

"Why Witness Prepared This Report: A Background", Witness (Webpage, 2019) https://lab.witness.org/ticks-or-it-didnt-happen/

Parker, Robyn, "Evidence-Based Practice And Service-Based Evaluation", AIFS (Webpage, 2013) https://aifs.gov.au/cfca/publications/evidence-based-practice-and-service-based-evaluation

"Evidence Act 1995", New South Wales Consolidated Acts (Webpage, 2022) https://classic.austlii.edu.au/au/legis/nsw/consol_act/ea199580/

Browne, Darryl, "Elder Law & Succession: November 2019", LSJ (Webpage, 2019) <https://lsj.com.au/articles/elder-law-succession-november-2019/>

Gardiner, G., Legal Burdens Of Proof And Statistical Evidence. (Routledge handbook of applied epistemology, 2018)

Blume, John and Rebecca K. Helm, "Blume, J. H., & Helm, R. K. (2014). The Unexonerated: Factually Innocent Defendants Who Plead Guilty." (2014) 100 Cornell L. Rev.

K.Cheng, Edward, "Reconceptualizing The Burden Of Proof." (2012) 122 Yale LJ

NPCC. 2022. Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures. [online] Available at: <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1051269/achieving-best-evidence-criminal-proceedings.pdf> [Accessed 5 April 2022].

NSW Lefislation. 2022. Evidence Act 1995 No 25. [online] Available at: <https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1995-025> [Accessed 5 April 2022].

Peake, L., "Testing The Regulator's Priorities: To Sanction Wrongdoers Or Compensate Victims?." (2020) 39(2) University of Queensland Law Journal

Sinn, J., "Managing Nascent Digital Competition: An Assessment Of Australian Merger Law Under Conditions Of Radical Uncertainty." (2021) 44 UNSWLJ

Stratton, H., "Perfectly Safe, Five Times Out Of Six: The'briginshaw'principle And Its Paradoxes." (2019) 42(2) University of New South Wales Law Journal