Category Archives: Evidence

Luxton v Vines [1952] HCA 19

ON 4 April 1952, the High Court of Australia delivered Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 (4 April 1952).

“In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (1911) AC 674, at p 687. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf. per Lord Loreburn (1911) AC, at p 678″. (at p358)”


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Kemp v R [1951] HCA 39

ON 17 JULY 1951, the High Court of Australia delivered Kemp v R [1951] HCA 39; (1951) 83 CLR 341 (17 July 1951).

The accused had been indicted on three counts of indecent assault and acquitted of two. A new trial was held for the third, resulting in conviction.

During the new trial, the complainant gave evidence of similar acts consisting of offences on two occasions prior to the third. The High Court held that the evidence was not admissible as it may have included the two counts of which the accused had been acquitted.

Accordingly, the court held that the conviction could not stand. Instead of ordering a new trial, the court ordered that the conviction be quashed as the accused had served nearly two years of the sentence.

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Briginshaw v Briginshaw [1938] HCA 34

ON 30 JUNE 1938, the High Court of Australia delivered Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938).

Where serious or grave allegations are made in a civil case, the court must, when making findings of fact, apply the civil standard of proof but, depending on the nature of the issue, give serious consideration as to whether or not it has reached the necessary degree of reasonable satisfaction or persuasion that the alleged facts are more likely than not to exist.

Per Dixon J at 362:

[R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. …


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Woolmington v DPP [1935] UKHL 1

ON THIS DAY in 1935, the United Kingdom House of Lords delivered Woolmington v DPP [1935] UKHL 1 (23 May 1935).

The case is known for the following passage:

“Through-out the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt…. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted.”


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R v Smith (“Brides in the Bath case”) (1915) 11 CR App R 229

ON 13 AUGUST 1916, the Court of Criminal Appeal delivered R v Smith (1915) 11 Cr App R 229.

The defendant was accused of murdering his wife, Bessie Munday, who was found dead at home in her bath. Evidence of the death of two subsequent wives in similar circumstances was held to be admissible as it was improbable that three different women would have accidentally drowned in the bath given that their deaths occurred not long after entering marriage and financial arrangements under which which the accused would stand to benefit if they died.

Smith’s appeal was unsuccessful. He was convicted and hanged on 13 August 1916.

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Fingerprint evidence | 23 May 1905

ON THIS DAY in 1905, Alfred and Albert Stratton were the first in Great Britain to be convicted for murder in a trial where fingerprint evidence was used.

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1901 | Oaths Act

ON THIS DAY in 1901, the NSW Oaths Act 1900 commenced.

Browne v Dunn (1893) 6 R 67 (HL)

ON 28 NOVEMBER 1893, the House of Lords delivered Browne v Dunn (1893) 6 R 67 (HL).

A party who cross-examines a witness must, out of fairness, “put it” to the witness any contradiction they suggest arises from their evidence in order to give them an opportunity to explain the contradiction.

Per Lord Herschell at 70-71:

“…it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged and, then, when it is impossible for him to explain…to argue that he is a witness unworthy of credit.”


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1858 | Lincoln’s Almanac case

ON THIS DAY in 1858, Jack Armstrong, represented by a young Abraham Lincoln, was found not guilty of murder in the Cass County Circuit Court case of People v Armstrong.

A witness claimed to have observed the alleged unlawful act by the light of the moon. Lincoln discredited the witness by producing an almanac showing there was insufficient moonlight that particular night and as a result his client was acquitted.

Statute of Frauds 1677

ON 16 APRIL 1677, the English Parliament enacted the Statute of Frauds 1677.

This Act required certain dealings with real property, sale of goods, estates, trusts and marriage be reduced to writing and signed in order to avoid fraud or perjury.

The provisions of the Act have since been incorporated into many pieces of legislation around the common law world.