Law of Evidence

• Facts in issue


  Where the defendant pleads not guilty, the facts in issue identify has to be proved by the prosecution for the defendant to be found guilty, or exceptionally, what the defendant has to prove in order to establish his innocence
• Relevance


  For evidence to be put before court, it must be relevant or probative of a fact in issue or to a collateral fact in the fact. For evidence to be relevant, there must be a logical relationship between the evidence tendered and the fact to be proved
• Admissibility


  For court to receive evidence it not only has to be relevant to a fact in issue, it must also be admissible. Admissible evidence is evidence which, as a matter of law, can be received by court
• Weight


  Even where evidence is relevant and admissible, this does not mean that court will find the evidence to be convincing or persuasive. The weight of the evidence may for e.g. depend on the credibility of the witness. Less weight is likely to be attached to the weight of a biased witness
• Types of evidence


  • Oral evidence
  • Documentary evidence
  • Direct evidence
  • Indirect evidence
  • Primary evidence
  • Secondary evidence
  • Real evidence
  • Circumstantial evidence
• Real evidence


  Any material from which Court can draw conclusion from its own observation. It usually takes the form of material object e.g. tape recording, photograph, computer printout
• Circumstantial evidence


  In contrast to direct evidence, CE is evidence of "relevant facts" from which the existence or non-existence of facts in issue may be inferred. CE "works by cumulatively, in geometrical progression, eliminating other possibilities". Although the weight to be attached to CE is not in any way less than that attached to direct evidence, "it must always be narrowly examined". Before drawing the inference of the accused's guilt from CE, Court must be sure that there are no other co-existing circumstances which would weaken or destroy the inference
• Judicial notice


  Facts which are notorious of common knowledge, known to all mankind that evidence of their existence is unnecessary
• Legal Burden


  Also known as 'the ultimate burden', this is the obligation to prove a fact in issue
• Evidential Burden


  This is the obligation to adduce sufficient evidence to prove in your favour. As a general rule, the party bearing the legal burden on a particular issue will also bear the evidential burden on that issue
• Standard of proof


  • Proof beyond reasonable doubt
  • Proof on a balance of probabilities
• Proof beyond reasonable doubt

  Does not mean proof beyond the shadow of a doubt. If the evidence is so strong against the accused as to leave only a remote possibility in his favour, the case is proved BRD
• Proof on a balance of probabilities

  Must carry a reasonable degree of probability, not so high as is required in criminal cases. If the evidence is such that it is more probable than not, the burden is discharged. But if all the probabilities are equal, it is not
• The general rule in criminal cases is that the legal burden and the evidential burden lie on the Prosecution to prove the guilt of the defendant beyond reasonable doubt
• Exceptions where the evidential burden shifts onto the accused: self-defence, provocation, duress, non-insane automatism
• When the accused is raising insanity as a defence, the accused has the legal burden and evidential burden of proving his insanity
• In civil cases, the legal burden of proof generally lies on the plaintiff
• In civil cases, the standard of proof is on a balance of probabilities, except for civil contempt where it is beyond reasonable doubt
• Presumption without basic facts

  Court can draw a conclusion in the absence of evidence in rebuttal. E.g. Presumption of innocence, presumption of sanity
• Presumption of facts


  Inferences of facts which a Court may draw in consequence of the existence of another fact. The party against whom the presumption operates bears neither a legal nor evidential burden in relation to the presumed fact
• Irrebutable presumption of law


  E.g. It is an irrebuttable presumption of law that minors below 16 cannot consent to sexual intercourse
• Rebuttable presumption of law


  E.g. It is a rebuttable presumption of law that a child born during wedlock is a legitimate child
• Confession


  An out-of-court statement by an accused to a person in authority admitting or suggesting the inference that he had committed the offence with which he stands charged
• Voluntariness of confession


  To be admissible, a confession must be voluntary. Confessions obtained through oppression, inducement, breach of right to silence, or breach of right to legal representation are involuntary and inadmissible
• Voir dire


  A procedure to challenge the admissibility of a confession on the grounds of involuntariness
• Voir dire


  Procedure where the admissibility of a confession is determined in a trial before the main trial
• Procedure if confession held admissible after voir dire

  Prosecution can cross-examine accused on inconsistencies between evidence given in main trial and statements in voir dire
• Court's determination on confession

  • Court has no discretion but must exclude the confession outright if obtained through oppression or inducement
  • Court has discretion whether or not to exclude the confession if obtained in breach of Judges' Rules or Constitution
• If confession held admissible

  Case proceeds and weight to be attached to statement is left to jury
• If confession held inadmissible


  Case proceeds but statement not produced in Court, if only evidence is confession then case stops
• Burden of proof is on prosecution to prove confession is voluntary
• Unlawfully obtained evidence


  Generally admissible if relevant and probative, except for oral/written statements that incriminate accused and are obtained by intimidation/inducement, and judge has discretion to exclude if prejudicial effect exceeds probative value
• Unlawfully obtained evidence


  • Cannabis found as result of unlawful search is admissible
  • Judge has discretion to exclude admissible prosecution evidence if prejudicial nature outweighs probative value
• Confession containing prejudicial evidence


  Court may edit the statement to a certain extent, if unintelligible after editing then court will not edit and may exclude the confession completely
• Mixed statement in confession

  The whole statement must be adduced, judge may point out incriminating parts are likely true while excuses have less weight
• Confession implicating a co-defendant is generally inadmissible as hearsay, except if procedure under Judges' Rules is followed or accused re-implicates co-defendant in court
• Silence as admission


  Only in exceptional circumstances where allegation is made by person speaking to accused on equal terms
• Competence


  The capacity to depone (testify) as per the law
• Compellability


  The obligation to depone if you are competent
• If a competent and compellable witness refuses to depone, they can be punished for contempt of court