Categories of Evidence and the Briginshaw Principle in the Evidence Act 1995 (NSW)

Categories of Evidence and the Briginshaw Principle in the Evidence Act 1995 (NSW)

Categories of Evidence according to the Evidence Act 1995 (NSW)

Evidence plays a crucial role throughout every criminal incidence. Legally, evidence encompasses the burden of proof, admissibility, relevance, weight, and sufficiency required for inclusion in legal records. Evidence is a crucial component of every municipal and criminal procedures, including blood, hair samples, video recordings, and witness testimony.Data has been trained until October 2023. The Evidence Act 1995 NSW was established to provide uniformity in the treatment of evidence by the courts throughout all state and federal jurisdictions. Evidence is defined as information or objects distinct from legal arguments that assist in establishing or refuting the existence of any contested fact. According to the Evidence Act 1995, primary evidence comprises three categories: testimonial evidence, documentation, and physical evidence.2 This article will examine the standard of evidence in both civil and criminal matters pertaining to the Evidence Act 1995 (NSW). The Briginshaw concept will be elucidated in connection with the Evidence Act 1995. The assessment of the Briginshaw concept in civil procedures will be emphasized.

To effectively prosecute the case in court, it is essential for the evidence to be robust and substantiated. It is necessary to substantiate the argument with compelling evidence. Evidence may take several forms, including documents, videos, audio recordings, or witness statements. Verbal declarations may also be regarded as testimony provided by witnesses in court. To establish a fact in the matter, it is necessary to construct a legal argument. Furthermore, other factors contribute to the legality of evidence. In instances of carelessness, the party must be aware that another party has a duty of care, and if this duty is infringed, the first party will incur damages.[3] This results in a contract violation, requiring the plaintiff to demonstrate the existence of the contract and its legal features. The fact in question constitutes the first element of the Evidence Act. The second aspect pertains to the admissibility and relevance of the presented evidence. In the aforementioned negligence example, the party must substantiate their claim by contemporary and indirect relevance to the case, since observation, perception, and description constitute pertinent evidence. Nonetheless, circumstantial evidence may also be used to deduce conclusions, such as previous behaviors or the existence of a purpose. The presentation of legal evidence in court is contingent upon the burden of proof.Typically, the party initiating the legal action has the burden of proof. The plaintiffs have the responsibility to substantiate the claims by presenting proof. In civil proceedings, this is referred to as the balance of probability, indicating whether the claims are likely or unlikely. However, the burden of evidence in criminal prosecutions is established beyond a reasonable doubt. The prosecution must provide proof that eliminates any doubt in an individual's mind.[5]

Criteria of Evidence in Civil and Criminal Proceedings

The standard of proof is defined as the claim or statement in a trial that establishes the requisite degree of evidence. In criminal procedures, the court requires the prosecution to bear the burden of evidence to substantiate the allegations; conversely, in civil matters, the plaintiff is responsible for the burden of proof. The burden of evidence in criminal trials must be established beyond a reasonable doubt, but in civil processes, it is determined by the preponderance of probability. Reasonable doubt is characterized as the mental condition of judges who are unable to reach a definitive conclusion after evaluating the presented information.[6] In criminal procedures, the prosecution must achieve a high level of satisfaction via the presentation of appropriate evidence and documents in court. Should any question arise in the jury's mind, the accused should be given the benefit of the doubt, resulting in a declaration of innocent. The threshold of reasonable doubt is crucial in criminal prosecutions to ensure punishment is only applied to the guilty, while also preventing the state from exerting disciplinary measures on those who may be shown as innocent. In civil processes, the standard of evidence is determined by the balance of probabilities to substantiate the allegations against the opposing parties. In a civil process, the judge is obligated to provide a ruling in favor of the side that has presented the preponderance of evidence.7 However, this criterion did not stipulate that the facts presented would dispel any doubt about that evidence. In civil processes, the balance of probability is maintained via two phases. on the first phase, surety is based on probability, but in the subsequent phase, the court evaluates them. Consequently, the probabilities are determined by the corroboration of the established fact. In instances affecting the party's status, it is important to meticulously assess the probabilities relative to the loan secured by a promissory note; the evidence presented must reflect the nature and severity of the situation, ensuring that the decision yields a reasonable satisfaction of the truth.

The Briginshaw principle is sometimes misconstrued as the third criterion for establishing a case, in addition to the balance of probability and beyond reasonable doubt in civil and criminal trials, respectively. This idea that the Briginshaw principle is the third level of evidence is erroneous.This concept allows for flexibility in civil processes, indicating that the evidentiary standards based on reasonable probability may vary depending on the nature of the matter to be demonstrated, as noted in Neat v. Karajan Holdings.[9] The High Court of Australia determined that the likelihood of the accusation must serve as the fundamental criterion for the decision-maker to substantiate their conviction about the facts of the case. The gravity of the accusation is closely correlated with the specificity of the proof. The Birginshaw concept has three aspects, the first of which pertains to the inherent uncertainty of claims and the consequences derived from factual conclusions. This idea is enshrined in section 140(2) of the Evidence Act 1995 (NSW). This provision asserts that the court must examine three elements while adjudicating a matter involving conflict. The first pertains to the nature of the cause of action or defense, the second concerns the nature of the subject matter relevant to the problem, and the third addresses the gravity of the claimed things. In criminal proceedings, the Briginshaw principle applies, since the council is required to provide evidence based on the three considerations outlined in section 140(2).In instances of unreliable or inadequately acquired evidence, this principle is invoked, and the evidence based on the aforementioned three characteristics is considered. If the evidence does not adhere to the Briginshaw standard, the dependability and gravity of the misconduct will be compromised, and the judicial officer will lack a sense of genuine incentive and reasonable satisfaction.Eleven

The Briginshaw Principle and Its Implementation

The Briginshaw principle asserts that more compelling evidence is required to satisfy the burden of proof in cases involving severe claims or instances that did not occur. In civil matters, the Briginshaw principle does not alter the level of evidence required in civil procedures. The rationale for this option stems from the need for more substantial evidence to substantiate the charges in a severe case, so enabling the adduction of cause of action.12 This idea is more precisely applicable in instances of fraud and dishonesty. This is shown by the case of The Estate of Shirley Gardner Bernengo v. Leaney (2019) NSESC 1324.[13] The conflict arises from the de facto partner's clandestine contact with the deceased. The rationale for maintaining the confidentiality of the connection between the two parties is because the plaintiff has been involved in another relationship with the daughter of the dead individual. The defendant said that the connection was atypical and improbable in accordance with the Briginshaw standard. Nevertheless, it has been noted that more solid evidence is required to determine the association. Justice Bell P said that the Briginshaw principle is applicable in instances of fraud and dishonesty; nevertheless, the nature of the claim in this instance was not grave and did not provide convincing evidence to assist the court in rendering definitive determinations. Furthermore, the court noted that the claim relied on the balance of probability rather than substantive evidence on the severity of the act; hence, it might be determined that the Briginshaw principle is inapplicable in civil matters. 

This concept is inapplicable not civil processes, since it is designed to ensure proper verdicts in cases involving severe claims, such as criminal acts. Civil lawsuits are less severe, and the damages awarded are determined by penalties or particular remedy measures.[14] Civil issues arise from the violation of civil rights, whereas criminal proceedings are directed against society as a whole and are thus seen as serious in nature. Consequently, to establish any conviction in a criminal case, the judicial officer must meticulously review and evaluate the evidence to administer appropriate penalties.

Final Assessment

Ultimately, it may be stated that while the standard of beyond a reasonable doubt is upheld, the evidence must adequately demonstrate the facts. Given that the balance of probability standard is less stringent than that used in criminal trials, it is unreasonable to assert that the seriousness of issues in civil cases is not given due consideration. The Courts have often been petitioned to create a third standard of evidence that lies between the criminal and civil standards. Although this may seem like a feasible alternative under atypical circumstances, such as a criminal accusation inside a civil case. Despite the existence of two standards, ambiguities persist, making the introduction of a third standard potentially unwise at this juncture. Consequently, in a criminal case, the court is mandated to undertake necessary measures to ascertain relevance and guarantee the precision of justice administered. In civil proceedings, the parties must present the most compelling evidence to enable the court to render an informed decision, as the penalties in criminal cases are more severe than those in civil cases; therefore, the Briginshaw principles are more pertinent to criminal cases than to civil ones. 

References 

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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/>

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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].

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