A prosecutor attempts to lay charges against an alleged perpetrator (in New Zealand anyone can do this under the private prosecution provisions).

The judge is presented with a set of pieces of circumstantial evidence and has to decide whether they are sufficient to justify a trial. If they are, he issues summons to the defendant and the process kicks off. If they are not, he drops the charges.

Any one of those pieces of evidence in isolation cannot prove guilt beyond reasonable doubt. However, looking at them all together one can see that they corroborate and draw inferences of fact. Such inferences can well be sufficient to prove criminal charges.

The judge considers only some of the pieces of evidence, not all, and drops the charges saying that there was no direct evidence. He does not explain why the rest of the evidence was not considered.

Is this an error of law, or any other judicial error?

  • You use "circumstantial" as if it means "not, per se compelling". I am pretty sure "circumstantial" means "evidence not from eye-witness testimony" (and we all know how unreliable the latter can be). Commented Mar 12, 2019 at 7:47
  • Are you sure that the ignored pieces of evidence would be allowed at trial? It may be obvious to the judge that they would not, and it may be so obvious that he doesn't even bother to comment on them. (Are you perhaps the private prosecutor in the case?) Commented Mar 12, 2019 at 7:49
  • @MartinBonner You're mixing up circumstantial and hearsay evidence. The ignored pieces were presented together with those that the judge referred to, no reason to think they would not be allowed. Whether I am the private prosecutor is irrelevant to the question.
    – Greendrake
    Commented Mar 12, 2019 at 8:05
  • No I am not. "The DNA we recovered from the vagina of the victim is a 100% match to the accused" is circumstantial evidence. "I saw the rapist and it was the accused" is not. Hearsay evidence is "the accused's brother told me he wasn't at the party" (not allowed), or "the accused told me he did it" (allowed). Commented Mar 12, 2019 at 9:04
  • Is the judge not considering all the evidence when he/she decides whether each part would justify a trial, and whether it would be considered relevant at that trial? I'm not seeing what's being ignored here - there's a lot of consideration goes into ruling something irrelevant or otherwise inadmissible. Commented Mar 12, 2019 at 10:59


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