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Keane: The Modern Law of Evidence


A. Facts open to proof or Disproof:

1. 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
Keane: The Modern Law of Evidence

Oral statement of a witness made on oath in open court. Direct testimony refers to
where a witness has perceived a fact in issue, relevant fact or collateral fact with one
of his or her five senses.

2. Hearsay evidence

This is any statement, other than the one made by a witness in the course of giving his
evidence in the proceedings in question, by any person, whether it was made on oath
or unsworn and whether it was made orally, in writing or by signs and gestures, which
is offered as evidence of the truth of its contents.

If the statement is tendered for any purpose other than that of proving the truth of its
contents (eg. To prove the state of mind of the maker of the statement), then it is not
hearsay but original evidence. Provided that it is relevant to a fact in issue, original
evidence is admissible.

3. Documentary evidence

Documentary evidence consists of documents produced for inspection by the court.

The word document is varied in that it can include maps, plans, graphs, drawings,
photographs, video-tapes, negatives.

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).

As a general rule, a party seeking to rely on the contents of a document must adduce
primary evidence of those contents, which is usually the original, as opposed to
secondary evidence.

4. 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, condition, or value of the object in question. In addition to material objects,
including documents, examples of real evidence also include the physical appearance
of persons and animals, the demeanour of witnesses, the intonation of voices on a tape