Trial Judgement

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PRECEDENT TERMS OF USE All forms, templates and precedents, including anything found on this page, can be used without the need for any attribution.

General Examples

INTRODUCTION

OVERVIEW

• Identify what the finding that is being reviewed

BACKGROUND FACTS

organize by headers

Procedural facts

Undisputed facts

review of disputed evidence

ISSUES

List issues

POSITION OF THE PARTIES

ISSUE 1

ISSUE 2

ISSUE 3

ANALYSIS

ISSUE 1

Governing Principles

Principles Applied

ISSUE 2

Governing Principles

Principles Applied

ISSUE 3

Governing Principles

Principles Applied

CONCLUSION

Articulate disposition and declare order(s)

Another Generic outline

• Introduction
• Issues
• Background and non-disputed fact
• findings of facts on disputed
• analysis on issues
• result

Credibility Trial 1

INTRODUCTION

• Identify accused and charges

ISSUE

• Given the conflicting evidence, has Crown proven essential elements on a standard of proof beyond a reasonable doubt?

POSITION OF THE PARTIES

• General summation of the positions of Crown and defence

BACKGROUND/UNDISPUTED FACTS

CONTESTED EVIDENCE

• Summarize disputed evidence by each witness
• witness #1
• witness #2
• ...
• accused

LAW

• Burden of Proof remains on Crown and generally never shifts
• Standard of proof is beyond a reasonable doubt
• DW test
• Tools for Evaluating Evidence
  • Judge may accept all, some, or none of a witness's evidence based on an assessment of reliability and credibility
  • To that end, Judge may consider
    • inconsistencies (with self, others, records, or real evidence),
    • corroboration (with others, records, or real evidence),
    • capacity to observe (opportunity to observe, emotional state, attention)
    • capacity to remember (awareness of importance of observation at time, )
    • bias/partiality, manner of testimony, demeanour, and apply common sense to the plausibility of evidence.
  • The Judge has discretion make inferences of fact where it is logically and rationally connected to evidence and accords with common sense.
• Touch on relevant impermissible forms of analysis

ANALYSIS

• Analyze accused testimony (Does the Judge Believe the Accused? If not, does it leave the Judge in doubt on any essential element?)
  • In each analysis, apply the "tools for evaluating evidence" (above)
• Analyze defence witness testimony (Does the Judge Believe them? If not, does it leave the Judge in doubt on any essential element?)
• Analyze the alleged victim (Does the Judge believe the alleged victim? )
• Analyze the Crown witnesses (Does the Judge believe the witnesses? )
• Consider what evidence the Judge accepts, including testimony, records, and real evidence.
• Analyze whether on the accepted evidence, has the elements been proven beyond a reasonable doubt.

CONCLUSION

Articulate disposition and declare order(s)

Judges should be cautious of the following typical errors

• finding that the accused tailored his evidence in response to hearing evidence from other witnesses.
• reversing the burden of proof in analysis by making the testimony a competition between the accused and crown witnesses.
• relying on bad character evidence without weighing probative vs prejudicial value.

Sexual Assault Trial

Introduction

• list charges, describe dates of trial and witnesses. Identify key allegation and defence position. Identify

Law

• Presumption of Innocence and Burden of Proof
• When an Accused testifies (ie. law of WD)
• Assessing Credibility and reliability
• Assessing Special Types of Evidence (e.g. children, etc)
• Elements of the Offence

Evidence

- Caution that summary is not drawing conclusions on credibility

• AB
  • Each Incident
• CD
• Defence Evidence

Analysis

• Accused's evidence
• Complainant's evidence
  • Discuss third party suspect evidence
  • Discuss circumstantial evidence

- Emphasis that conclusions are based on totality of evidence

Conclusion

Impaired with Charter Issues

• Introudction
• Issue #1 - Lawfulness of the ASD Demand
  • Governing Principles
  • Relevant Facts
  • Positions of Parties
  • Principles applied
• Issue #2 - Were Acccuse's 10(b) Rights infringed?
  • Relevant Facts
  • Positions of Parties
  • Governing Principles
  • Principles applied
  • Section 24(2)
• Issue #3 - Crown Proven the Offences?

Elements of Writing

Clarity

Conciseness

Coherence

Facts

• only discuss facts NECESSARY to decide the issue.
• avoid fudging/misrepresenting evidence. It will be glaring to the losing party.
• keep separate the evidence from the findings of facts or inferences drawn.

Credibility

• the obligation is not to decide which version of events is true.
• Do not make any unnecessary findings about credibility.

See Also

• Sentencing Judgement