QLD Evidence of Who the Law Applies to?

[Rob Legat - SBPL]

To be somewhat flippant and to reference another of your posts: 'personal experience'.

It could accept something from a variety of places (or any combination of them), including:
- Personal knowledge
- Expert evidence
- Agreement between the parties
- Long standing practice
- Common convention
- Presentation of 'hard' evidence
- Unchallenged testimony

If the court decides to accept something you don't get to challenge the fact that they accept it, and the court will generally say why it accepts it unless it's plainly obvious. Now, if the court does accept something - you don't get to challenge the fact that they do accept it. You can attempt to refute the evidence on which they base that acceptance - which goes back to my earlier comment that it will be up to you to disprove the situation.

 

[AnthonyC]

If the court accepts something a truth. What evidence had it initially accepted and from where to construe its position?

Certain facts are plain enough that they can be seen to be a part of the evidentiary fabric. To make such a determination, the Court must hold a certain air of authority, or to put it another way goodwill. Any authority they have is only such to the extent in which they are respected and allowed to remain in force by the will of the People. We, as a collective whole, give them that authority.

Just my humble opinion here.

You have a rather intriguing point of view. I'm trying my best to comprehend what it is you are actually seeking, but to be honest it's somewhat difficult to follow.

 

[cuttyshatface]

Certain facts are plain enough that they can be seen to be a part of the evidentiary fabric. To make such a determination, the Court must hold a certain air of authority, or to put it another way goodwill. Any authority they have is only such to the extent in which they are respected and allowed to remain in force by the will of the People. We, as a collective whole, give them that authority.

Just my humble opinion here.

You have a rather intriguing point of view. I'm trying my best to comprehend what it is you are actually seeking, but to be honest it's somewhat difficult to follow.

Thank you for your answer. Much appreciated. According to Kirby J in Carr v Western Australia, is that ‘[v]alid legislation apart, it is usually essential to the proper conduct of a criminal trial that the prosecution prove the guilt of the accused and do so by admissible evidence'. Therefore I am seeking, what admissible evidence does the prosecution tender into the proceedings when the presumption that the law, any law for that matter, that the law indeed applies to the named defendant. Legal Maxim: “A claim not contested, stands true.” So if the claim that the transgressed statute is contested, what evidence does the prosecution rely on to quash the contest to their claim.

 

[AnthonyC]

Thank you for your answer. Much appreciated. According to Kirby J in Carr v Western Australia, is that ‘[v]alid legislation apart, it is usually essential to the proper conduct of a criminal trial that the prosecution prove the guilt of the accused and do so by admissible evidence'. Therefore I am seeking, what admissible evidence does the prosecution tender into the proceedings when the presumption that the law, any law for that matter, that the law indeed applies to the named defendant. Legal Maxim: “A claim not contested, stands true.” So if the claim that the transgressed statute is contested, what evidence does the prosecution rely on to quash the contest to their claim.

As far as I can remember, the full Court Brief had some kind of index indicating what materials were being tendered. The Police seem to pick and choose about what they include though, if a certain exhibit supports your case more than theirs you can bet they'll be sure to exclude it !

At some point the Prosecution and your Defence agree on edits and exactly what parts of the material are going to Trial. I think a bit of bargaining goes on at this point. If your Defence isn't on the ball, the Prosecutor can and will sneak things past them too. They will try numerous tactics such as supplying the edits at the last possible moment, with various excuses, which means your Defence Counsel has little time to peruse the changes.

This becomes much more significant later on, for example, when you realise the Prosecution attempts to make a 'major' point about something where evidence was deliberately excluded that would have negated their ability to make that point.

Obviously there are rules about what can and can't be included, things both parties will recognise as inadmissible, being trained in Law.

I'm assuming that anything adduced during Cross Examination becomes 'evidence' too.

I've never been involved in a Trial with only a Judge but from the limited experience I've had the whole entire aim of the Prosecution is to eventually sway the Jury to their way of thinking. Truth be damned !!!

At every stage of the game someone will try to 'put an oar in' and give Justice a little helping hand to make certain you'll eventually be Convicted. They consider this manner of Corruption to be their civic duty and sleep well at night knowing they're doing their bit to keep Criminals off the streets.

 

[Rob Legat - SBPL]

You're assuming that the court will entertain the challenge and, even if it does so, that the prosecution must prove their case. The prima facie situation is that the legislation will apply. You even quote Justice Kirby as saying, "valid legislation apart..."

The court will take the position that the legislation applies to you, and that you bear the onus of proof to show that it does not. You cannot simply state that you contest something, you must give reasoning.

This does work in your favour as well. You'll no doubt be familiar with the phrase 'innocent until proven guilty'. In most instances of criminal prosecution, the defendant is presumed innocent and the prosecution bears the burden of proof. This means they must prove all the elements of the offence, usually beyond a reasonable doubt, in order to succeed.