Keane: The Modern Law of Evidence

CHAPTER 2 A. 1. Facts open to proof or Disproof: Facts in Issue

A fact in issue is sometimes referred to as a ‘principal fact’ or ‘factum probandum’. The facts in issue in any case given are those facts which the claimant (or prosecutor) must prove in order to succeed in his claim together with those facts which the defendant (or accused) must prove in order to succeed in his defence. In simple terms, the facts in issue are the facts relating to whatever the defendant is denying. E.g. they will be different where there is a denial that a contract exist compared with denial of a breach of contracat. In the latter, the existence of the contract is not disputed. In civil proceedings, the facts in issue are usually identifiable by reference to the statement of case. Its purpose is to set out the factual issues on which the parties agree and disagree so that the court knows in advance exactly what matters are left in dispute. As a general rule, a defendant who fails to deal with an allegation shall be taken to admit it. In criminal cases in which the accused pleads not guilty, the facts in issue are all those facts which the prosecution must prove in order to succeed, including the identity of the accused, the commission of the actus reus, and the existence of any necessary knowledge or intent on his part. In addition to any further facts that the accused must prove in order to establish any defence. 2. Relevant facts

A relevant fact, sometimes called a ‘fact relevant to the issue’, an ‘evidentiary fact’ or ‘factum probans’ is a fact which the existence or non-existence of a fact in issue may be inferred. Evidence of relevant facts is described as ‘circumstantial evidence’ 3. Collateral facts

Collateral facts, sometimes referred to as ‘subordinate facts’ are of three kinds: (i) facts affecting the competence of the witness; (ii) facts affecting the credibility of a witness; and (iii) facts, sometimes called ‘preliminary facts’, which must be proved as a condition precedent to the admissibility of certain items of evidence tendered to prove a fact in issue or a relevant fact. B. The Varieties of Evidence

The evidence by which facts may be proved or disproved in court is known as ‘judicial evidence’. It takes three forms: oral evidence, documentary evidence, and things. Any given item of judicial evidence may attract more than one of the labels by which the varieties of evidence have been classified. The principal labels are: 1. Testimony

a party seeking to rely on the contents of a document must adduce primary evidence of those contents. which is offered as evidence of the truth of its contents. photographs. Direct testimony refers to where a witness has perceived a fact in issue. or value of the object in question.Keane: The Modern Law of Evidence Oral statement of a witness made on oath in open court. The word document is varied in that it can include maps. plans. the demeanour of witnesses. In addition to material objects. If the statement is tendered for any purpose other than that of proving the truth of its contents (eg. relevant fact or collateral fact with one of his or her five senses. original evidence is admissible. as opposed to secondary evidence. other than the one made by a witness in the course of giving his evidence in the proceedings in question. the intonation of voices on a tape recording . 2. To prove the state of mind of the maker of the statement). As a general rule. condition. graphs. 4. video-tapes. 3. whether it was made on oath or unsworn and whether it was made orally. examples of real evidence also include the physical appearance of persons and animals. by any person. Documentary evidence Documentary evidence consists of documents produced for inspection by the court. Provided that it is relevant to a fact in issue. which is usually the original. in writing or by signs and gestures. Real evidence Real evidence usually takes the form of some material object produced for inspection in order that the court may draw an inference from its own observation as to the existence. negatives. then it is not hearsay but original evidence. The contents of documents are subject to the general rules of evidence on admissibility and their reception in evidence is also subject to two additional requirements (more in chapter 8). Hearsay evidence This is any statement. including documents. drawings.

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