Trial Judgement
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Background
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
- ISSUE 1
- 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.