In Victoria, the prosecution carries the burden of proving an accused person’s guilt beyond a reasonable doubt. This is the key principle of the criminal justice system, as no individual can be found guilty without any evidence. The principles of the common law and the Evidence Act 2008 (Vic) regulate the manner in which evidence is presented, tested, and finally accepted or rejected in a court.
Criminal defence lawyers have various tactics to question and dispute the case of the prosecution to safeguard the rights of the accused. These strategies are aimed at exposing weaknesses and provoking doubt, whereby issues of how evidence was gathered and witness reliability can be questioned.
Below are the key methods used in Victorian courts:
Challenging admissibility and legality
The defence counsel would start by questioning the lawfulness of the prosecution’s evidence. In case police had been conducting a search without proper warrants or had not given proper warnings during the process of interviewing, the evidence can be inadmissible.
In sections 135 to 137 of the Evidence Act 2008 (Vic), a court is under an obligation to reject evidence where the danger of unfair prejudice to the accused overrides the probative value of the evidence. Objections based on the hearsay rule in section 59 or objections to opinion-based evidence that is not within recognised exceptions are also brought up by lawyers.
Testing witness credibility through cross-examination
Cross-examination is one of the most effective tools available to the defence. In this process, the lawyers pose well-structured questions to expose contradictions, gaps, or inconsistencies in the testimony of a witness.
They also enquire into the history of the witnesses to determine their personal prejudices, intentions, or external influences that might have predisposed them to make their declarations.
Another frequent target is identification evidence, especially where a witness had a small view of the events or where the suspect was previously unfamiliar to the witness.
Scrutinising forensic and expert evidence
Fingerprints, DNA, and digital records are some of the forensic evidence that can be very effective in a trial. Nevertheless, the chain of custody is scrutinised by defence lawyers keenly to ensure evidence was handled appropriately since the time it was collected up to the time it was presented in the court.
Any loopholes or inconsistencies in this chain may cast doubts on the integrity of the evidence. Attorneys often also hire outside specialists to come and scrutinise forensic reports and criticise the techniques or conclusions suggested by the prosecution experts. An expert’s evidence should undergo rigors requirements of reliability to be admissible in court as stipulated by the Victorian courts.
Arguing alternative interpretations of evidence
There is no evidence that leads to one conclusion. Defence lawyers put forward other explanations that are in line with the evidence but prove the innocence of the accused. This is especially useful when the case presented by the prosecution is based on circumstantial evidence.
In this situation, the defence counters that the evidence does not solely point to the guilt of the accused and that other reasons can be used to interpret the evidence. It is not aimed at proving some alternative version of events, but at proving that the prosecution has not removed all the reasonable versions.
Procedural and pre-trial challenges
Procedural avenues are also used by defence lawyers to confront the case of prosecution up to the point when a trial is concluded. Key procedural strategies include:
- Disclosure requirements: Defence lawyers must fully disclose all brief of evidence materials, including unused material that can weaken the case of the prosecution or favour the defence.
- No case to answer submissions: When the prosecution cannot put forth sufficient evidence in their case, the defence can make submissions that there is no case to answer, which may result in the acquittal without the defence giving evidence.
- Evidence challenges: Under section 98 of the Evidence Act 2008 (Vic), the defence is allowed to object to evidence because it indicates that the accused has a tendency to act in a particular manner, claiming that it is prejudicial, irrelevant, or that witnesses can collude.
The presumption of innocence remains central
In all the levels of a criminal case, the principle of innocence is the prevailing one. The defence has no responsibility for demonstrating innocence. Rather, all the attention is paid to proving the power of the evidence presented by the prosecution and showing its weak points.
Defence lawyers play an important role in making sure that justice is served fairly when they point out weaknesses in the way evidence was obtained, when they point out discrepancies in witness testimony, or when they offer credible alternative explanations.
Any person who must respond to any criminal charges in Victoria will find the concept of challenging evidence to be enlightening when going through the process, which can be quite stressful and unpredictable. To come up with a fair decision, it is necessary to have a strong defence strategy that is developed upon an examination of the prosecution’s case.