Evidence and Proof in Litigation (download the word document here)
Rick Bradley has been charged with the murder of David Cox, the late husband of co-accused Eileen Cox. The Crown say the accused Bradley killed the deceased David Cox and the accused Cox counselled and procured him to do it. Refer to the included case file documents, identify the evidentiary issue/s you wish to focus on, and discuss. Refer to relevant case file documents, rules of evidence, supporting legislation and case law in your discussion.
Case File documents:
- Document 1 – Police summary
- Document 2 – Exhibit list
- Document 3 – Autopsy report
- Document 4 – Record of interview – Rick Bradley
- Document 5 – Statement – Terry Cox (Eileen and David Cox’s son)
- Document 6 – Forensic Statement – Brown
- Document 7 – Bradley bank records
- Document 8 – Cox bank records
- Document 9 – Trial Transcript – day 3
- Document 10 – Trial Transcript – day 10
- Document 11 – Trial Transcript – day 11
- Photographs 32 and 33
- Photographs 68 and 69
- Photographs 106 and 107 Note:
To obtain a conviction for murder, the prosecution must prove:
- The accused caused the death of another person by an intended act or omission; and
- There was malice afterthought that preceded or co-existed with this act or
‘Malice afterthought’ may be satisfied in a number of ways:
- An intention to cause the death of, or grievous bodily harm to, any person (whether such person is killed or not);
- Knowledge that the act which caused death would probably cause the death of, or grievous bodily harm to, some person (whether such person is killed or not); or
- An intent to commit any crime the necessary elements of which include violence and which is punishable by life imprisonment or imprisonment for a term of 120 months or more, where the death is intentionally caused by an act of violence done in the course or furtherance of such a
Answer Preview (Download the word file above as most of the footnoting is lost)
The deceased (Mr. Cox) was shot and killed while in his premises on the 26th day of June and his body was discovered by his son Terry Cox the next day morning. On the said night, the deceased was home alone and his wife had indicated that she would be with the accused’s de facto Lana McMahon. The deceased stayed home waiting for his lounge suit to be delivered the following morning and his son Terry helped carry it to the back of the premises. The accused visited the deceased’s premises and was the last person to see him alive. During the investigations, the police discovered that the deceased was shot using a 22 caliber rifle and the accused owned a similar weapon. They further discovered through a confession made by the deceased to a previous lover that she had planned to kill the husband on several occasions. The autopsy report also showed that asphyxiation was also a contributing factor to the death of the deceased. The aim of this paper is to identify and analyze the evidentiary issues applicable to the case. More specifically, we will analyze the ingredients of the offence, and both the direct and circumstantial evidence obtained from the crime scene.
Identification of evidentiary issues
In order to consider the culpability of an accused person, the following principles of law are taken into consideration; first, the law clearly provides that an accused person is presumed innocent until proven guilty. Therefore, the court before convicting must be satisfied that the appropriate standard of guilt is established. Secondly, regarding the standard of proof the prosecution must prove beyond reasonable doubt and not merely show suspicion of guilt. Essentially, an accused person should not be convicted for putting in a weak defense. Thirdly, in regard to the nature of evidence, a conviction can only be obtained on the basis of evidence that is adduced in court. This evidence must be credible and admitted in accordance with the rules of evidence. The general rule in law is that all evidence is admissible. According to Barwick J in the case of Wilson (1970) all relevant evidence is admissible. Evidence is considered to be relevant if when accepted it could rationally influence the assessment of the probability of a fact in issue within the proceedings.
Analysis of evidentiary issues
In this part of the paper we will discuss the evidentiary issues identified above and their application to our case as follows;
Was the death of Cox murder in the eyes of the law?
In order to prove a murder case, the prosecution must establish that the ingredients for the offence have been satisfied. More specifically, the prosecution must prove beyond reasonable doubt that; the accused unlawfully caused the death of another either by an intended act or omission, and that the act or omission was preceded by malice after thought. The presumption made in law is that every murder should be assumed to be unlawful unless there is sufficient proof that it was accidental, or authorized by law. The English courts in the case of Woolmington v DPP stated that a death is excusable if it happened under justifiable circumstances such as self-defense. It is evident from the evidence that the death of Mr. Cox as neither an accident or authorized under law. Secondly, we must establish whether there was malice afterthought. In practice, malice after thought can be established from the evidence adduced on the circumstances surrounding the death of the murder victim. In deciding the existence of this ingredient, therefore, the court should consider factors such as the type of weapon used, the targeted part of the body, and the conduct of the accused person both before and after the act. If a vulnerable part of the body has been targeted, and a lethal weapon is used, then, malice afterthought may be inferred. In this case, it is evident that a gun was used to kill the deceased as shown in the photographs. The argument advanced by Chief Justice Hunt is that to implicate a murder perpetrator, photographs should be admitted as evidence to show the savagery and cruelty of a murder case. Thirdly, the autopsy report attributes his death to a single gunshot wound to the head. In my view, a gun is a lethal weapon and a shot to the head was intended to cause death. There was a record on the police summary of the accused admitting that he was the owner of the alleged murder weapon. During a search conducted at 7 Milton Drive Wyndham Vale, Senior Constable Chandler had recovered 22 caliber bullets and he established that all the three had been fired from the accused’s rifle. There was also evidence of two independent ligatures around the neck in the autopsy report which showed that asphyxiation was also a contributing factor to the death of Mr. Cox.
Whether the accused and the co-accused participated in the murder?
In this instance, establishing whether or not they participated in the crime is merely based on circumstantial evidence since the deceased is unavailable to give his testimony. To begin with, there is no evidence placing the accused and the co-accused at the scene of the crime during the said night. The case therefore, mainly rests on circumstantial, forensic evidence, the autopsy report and the recorded witness statements. The first person to see the crime scene was Terry the son to the deceased and the relevant part of his evidence is as follows; that the deceased and the co-accused have quarreled on many occasions and that they would often quarrel over everything especially the bills. He further stated that on the said night which the deceased died the security door was unlocked yet the norm was that it would always remain locked. He assumed that his parents had another big argument and that his mother had left it open in case she would want to come back. However, there was no actual eye-witness to the murder of the deceased except the testimony of his neighbor who claimed to have heard a gunshot at around 12a.m. His body was discovered in the bathtub the next morning by Terry. When the accused visited the premises at around 8 pm he was let in by the deceased who was home alone at that time. He went up to the 8 Mt. Eagle Way Wyndham Vale but left in an angry state when his de facto commented about his state of sobriety. He intended to go to the deceased’s premises but he claims to have changed his mind since he did not have any alcohol and it was cold. Furthermore, the co-accused and the accused’s de facto claim to have seen the accused return to the house five minutes after he had left therefore he had an alibi. The principle of law is that if an accused person wishes to rely on an alibi does not bear the burden of proving it. The prosecution is required to adduce evidence placing the accused person at the crime and show that the accused committed the offence. By claiming that they were elsewhere was proof to show that they were physically incapable of committing the offence they were charged with. The rule is that the mere assertion of an alibi is not enough to exculpate them from the charges. Therefore, they must adduce credible evidence that casts a doubt on the prosecution’s evidence that they were at the deceased’s premises.
Was the confession by Mrs Cox Admissible?
On the two occasions that Mr Bavage had met Mrs Cox after the death of the deceased she had told him that the accused was the male she had intended to involve in her earlier plan to kill her husband. She requested him to lie about the same if questioned by the police. Ibrahim v R (1914) the Privy Council held that such a confession if not induced or obtained under duress is admissible in evidence and need not be corroborated. Essentially, the fact that it was not made to a police authority does not make such a confession inadmissible.
Whether prior bad acts of the accused and co-accused could be adduced as evidence?
As earlier stated, the co-accused had on several other occasions made attempts to kill her husband and had intended to use the accused to execute the same. The question, therefore, remains whether in proving guilt the prosecution can rely on such acts. The Evidence Act provides that prior acts of a defendant are inadmissible if adduced to put into question his character. However, such evidence may be admitted if it is relevant to intent or motive and if it does not have a prejudicial effect. The court from the evidence could have concluded beyond reasonable doubt that the accused (Bradley) was the last person to see the deceased alive. The prosecutor can also argue that even if circumstantial there is a reasonable and possible inference that the Co-accused had a motive to commit the crime. The court could have also concluded from the witness statement of Terry that the co-accused had the intent to kill her husband. They had been involved in several fights, and from the statement it is evident that she was having an affair with another man.
Whether inconsistent statements admitted for their truth?
The general rule in criminal proceedings is that a person charged with any offence is competent to give evidence on their own behalf as a witness for the defense regardless of whether the person is charged solely or jointly with others. However such a witness may not be compelled to give such evidence. The question, however, as seen in this case is what happens if a competent witness for the prosecution decides to recant his statement. The court in the case of… stated that before a court convicts on a confession, it must first in all the circumstances of the case that the confession is true. However, such a confession must be corroborated by another independent person. Section 45 provides that a witness cannot be questioned an inconsistent recorded statement. The case of Carr v Western Australia is an example of instances where forensic evidence has played a significant role during the trial process. During the interview, the defendant had stated things that highly suggested that he was guilty. However, he later sought to discredit the evidence on the grounds that the information was no disclosed during an interview as required by legislation. The court differed on the admissibility of the evidence and stated that it should be excluded from trial. The co-accused had initially stated that on the night her husband was murdered she had visited him at his premises before proceeding to spend the night with Lana. However, in a subsequent interview carried out in the month of July, she stated that she had lied in her previous interview and that she did not attend her home the night her husband was murdered.
Whether the autopsy report is admissible?
The general rule in evidence law is that opinion evidence should not be admissible mainly because it lacks probative value. The exception to this rule however is the admissibility of medical and ballistics report. The admissibility of this evidence is premised on the fact that the courts lack the skills to analyze the issues, and therefore, a professional opinion must be supplemented. The reliance on the autopsy report therefore, is necessary to establish the deceased’s cause of death. It is evident that even though the cause of death was a gunshot wound, someone had tried to suffocate Mr. Cox hence proof that someone had a motive to kill him. In conclusion, therefore, the death of Mr. Cox was murder. This conclusion is premised on the fact that all the ingredients of the offence have been satisfied. The main evidence to be relied upon is circumstantial evidence and opinion evidence adduced from the autopsy report. However, such opinion must be weighed against all the other evidence before the court makes an inference.
Cunliffe E, ‘Impressions and Expressions: Expert Evidence in Reports and Courts’, (2011) Australian Academy of Forensic Sciences Conference, Sydney, 3–4
DPP v Kilbourne (1973) All ER 440 Evidence Act 1995 (Cth)
Ibrahim v R (1914) AC 599
The Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) [3.81].
Wilson (1970) All ER Woolmington v DPP (1935) AC 462
 Criminal Code 1900.  Ibid.  Wilson (1970).  Above (n 1).  Woolmington v DPP  ibid  Above (n 5).  DPP v Kilbourne (1973) All ER 440  Above (n 8).  AC 599  Evidence Act 1995 (Cth)  ibid  Section 45 Evidence Act  The Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) [3.81].  Cunliffe E (2011) ‘Impressions and Expressions: Expert Evidence in Reports and Courts’, Australian Academy of Forensic Sciences Conference, Sydney, 3–4 December 2011
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