How Evidence Is Used in Contested Criminal Proceedings
Evidence plays a central role in Victorian criminal proceedings. It is the information placed before the court to prove or disprove facts relevant to a criminal charge.
Evidence may come from witnesses, documents, recordings, physical objects, forensic examinations, expert opinions or other material. The court must determine what evidence can be considered and what weight should be given to evidence that is admitted.
In a contested criminal case, the prosecution generally bears the burden of proving the accused's guilt beyond reasonable doubt. The accused is presumed innocent and is not ordinarily required to prove their innocence.
This article explains how evidence and witnesses are used in Victorian criminal proceedings, what can happen at a contested hearing and the possible outcomes.
What must the prosecution prove?
Every criminal offence has legal elements that must be established before an accused can be found guilty.
Depending on the offence, these may include what the accused did or failed to do, their state of mind, their identity, where or when conduct occurred, whether a person consented to particular conduct, or whether a particular result such as injury, loss or damage occurred.
The prosecution generally must prove every essential element of the offence beyond reasonable doubt.
If the prosecution fails to prove an essential element to that standard, the accused cannot be found guilty of that charge.
There are limited circumstances in which legislation may place an evidential or legal burden on an accused concerning a particular defence, exception or fact.
What is the burden and standard of proof?
The burden of proof concerns which party must establish a matter. In a criminal proceeding, this generally rests with the prosecution.
The standard of proof describes how convincingly the matter must be established. The prosecution must prove guilt beyond reasonable doubt.
The court considers the evidence as a whole. A criminal case is not decided simply by counting the number of witnesses called by each side.
What types of evidence can be used in a criminal case?
Evidence can take many forms.
Witness evidence
Witnesses may include complainants, eyewitnesses, police officers, medical practitioners, forensic scientists, expert witnesses and other people with relevant information.
A witness will generally give evidence about matters they personally saw, heard or otherwise perceived.
The accused may also give evidence if they choose to do so.
Documents and digital evidence
Documents and electronic material may include emails, text messages, financial records, medical records, photographs, police records, social media material and other digital data.
The party relying on a document or electronic material may need to establish matters such as its authenticity and relevance.
Audio and video evidence
Recordings may include CCTV, body-worn camera footage, mobile phone recordings, emergency calls, recorded police interviews and other surveillance material.
Questions may arise about the quality, completeness, source or continuity of a recording and whether it has been altered.
Physical, forensic and expert evidence
Physical evidence may include clothing, property, weapons, biological samples, fingerprints or drugs.
Forensic evidence may involve DNA, fingerprint analysis, toxicology, drug analysis, digital forensics or other scientific examination.
An expert may give an opinion based on specialised knowledge acquired through training, study or experience. An expert's opinion is not automatically accepted by the court. The court may consider the expert's qualifications, methodology, assumptions, limitations and consistency with the other evidence.
What makes evidence admissible?
Evidence generally needs to be relevant before it can be admitted. However, relevant evidence may still be excluded or restricted under the rules of evidence.
Issues can arise concerning hearsay, opinion evidence, identification evidence, admissions, tendency or coincidence evidence, credibility evidence, privilege and evidence obtained improperly or illegally.
Admissibility concerns whether evidence can legally be considered by the court.
Weight concerns how persuasive or reliable evidence is after it has been admitted.
Evidence may therefore be admitted but given little weight.
In a jury trial, some questions about admissibility are determined by the judge rather than the jury.
How are witnesses questioned?
A witness statement records evidence that a witness is expected to give. A statement is not necessarily proof of everything it contains at a contested hearing or trial.
Where a witness is required to give oral evidence, the opposing party may have an opportunity to cross-examine them.
Cross-examination may address matters such as:
inconsistencies in the witness's evidence;
their ability to see, hear or remember events;
prior statements;
bias, motive or interest;
identification evidence;
assumptions or mistakes; and
evidence that conflicts with documents or recordings.
An inconsistency does not necessarily mean that a witness is dishonest. The court considers the nature and significance of the inconsistency and any explanation for it.
The concepts of credibility and reliability are also different. Credibility concerns whether a witness is honest and worthy of belief, while reliability concerns whether their evidence is accurate.
An honest witness can be mistaken, while a witness may provide accurate evidence about some matters but be unreliable about others.
Are there special arrangements for vulnerable or child witnesses?
Special arrangements may be available for eligible witnesses depending on the proceeding and their circumstances.
These can include giving evidence by audiovisual link, using a screen, having a support person or intermediary, pre-recording evidence and restricting the publication of identifying information.
The purpose of these arrangements is to facilitate the giving of evidence. They do not determine whether a witness is truthful or whether a charge has been proved.
How are police interviews and admissions used?
An accused's words or conduct may be relied upon as an admission. This can include statements made during a police interview, messages or other communications. Given how a record of evidence in a police interview can be used, is it vitally important to obtain legal advice before you speak to Victoria Police.
Questions may arise about whether an admission was made voluntarily, recorded accurately, obtained lawfully and fairly, or affected by circumstances such as age, language difficulties or intoxication.
The circumstances in which an admission was obtained may therefore be important when determining whether it can be used as evidence.
An accused person has a privilege against self-incrimination, which means that silence or providing a no-comment is not an admission of guilt and cannot be used against you.
What happens before a contested hearing?
Before a contested hearing or trial, the prosecution will generally provide material relating to the charges and evidence.
Depending on the case, this may include witness statements, recordings, photographs, police interviews, forensic reports, expert material and other documents.
The defence may seek further disclosure of relevant material where appropriate.
Reviewing the prosecution evidence can identify issues about admissibility, reliability, inconsistencies, potential defences and the elements of the charges that remain in dispute.
A criminal matter may also resolve before a contested hearing. Possible outcomes can include withdrawal or amendment of charges, diversion in an eligible matter, a guilty plea or partial resolution of the charges.
What happens at a contested hearing?
If a matter proceeds to a contested hearing, the prosecution presents evidence in support of the charges.
Witnesses may give evidence and be cross-examined. Documents, recordings, physical evidence and expert evidence may also be considered.
The defence may challenge the prosecution evidence and, depending on the case, may present evidence of its own.
The court must determine whether the prosecution has proved the charge beyond reasonable doubt.
In a jury trial, the judge determines questions of law and admissibility while the jury determines the facts and reaches a verdict according to the evidence and the judge's directions.
What happens if the prosecution does not prove the charge?
If the prosecution does not prove a charge beyond reasonable doubt, the accused must be found not guilty.
A finding of not guilty does not necessarily mean that every prosecution witness was dishonest or that the court accepted every part of the defence case. It means the prosecution did not establish the charge to the required standard.
Where several charges are heard together, the outcome may be different for different charges. An accused may be found guilty of some charges and not guilty of others.
In some circumstances, the law also permits an alternative verdict where the evidence supports a legally available alternative offence.
What happens after a finding of guilt?
If an accused is found guilty, the matter proceeds to a plea hearing and sentencing.
The court may receive further material relevant to sentence, which can include victim impact material, evidence of rehabilitation, character references, medical material and information about the accused's personal circumstances.
The court then determines the appropriate sentence within the powers available to it.
Depending on the offence and the circumstances, sentencing options can include imprisonment, a community correction order, a fine, an adjourned undertaking, dismissal or discharge, and other orders.
The court must also consider the applicable sentencing principles and factors relevant to the particular case.
Can a finding of guilt be appealed?
Appeal rights depend on the type of proceeding, the court involved and the nature of the alleged error.
Potential grounds can include legal error, an incorrect evidentiary ruling, an incorrect direction to a jury, procedural unfairness or a verdict that cannot properly be supported by the evidence.
The prosecution may also have appeal rights in certain circumstances. The prosecution cannot appeal an acquittal.
Strict procedural requirements and time limits apply to criminal appeals, so legal advice should be obtained promptly if an appeal is being considered.
Get legal advice about evidence in a criminal case
Evidence can determine whether a criminal charge can be proved beyond reasonable doubt. Its significance depends not only on what the evidence appears to show, but also on whether it can be admitted, how reliable it is and what weight the court ultimately gives it.
Witness evidence may be tested through cross-examination, while recordings, documents, forensic material and other evidence may provide independent support or contradiction.
A criminal matter may resolve before a contested hearing or proceed to a hearing where the court determines whether the prosecution has proved the charges.
Our criminal lawyers can provide advice and representation in relation to evidence, witnesses, contested hearings, trials and other criminal proceedings throughout Victoria.
For any information or assistance, please contact our legal team.
You can reach us at 03 8622 8200 or through our online form.