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EVIDENCE

EVIDENCE. Lecture 22 Week 11. WHAT IS EVIDENCE. Evidence is information used in court to decide on the probability of an alleged fact. Facts open to proof are: Facts in issue Relevant facts Collateral facts. FACTS IN ISSUE. Identifiable from the pleadings.

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EVIDENCE

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  1. EVIDENCE Lecture 22 Week 11

  2. WHAT IS EVIDENCE • Evidence is information used in court to decide on the probability of an alleged fact. • Facts open to proof are: • Facts in issue • Relevant facts • Collateral facts

  3. FACTS IN ISSUE • Identifiable from the pleadings. • Pleadings set out allegations, admissions and denials and thus define facts in issue • A fact formally admitted is no longer a fact in issue • Admitted in pleadings, interrogatories etc

  4. RELEVANT FACTS • Facts from which it is possible to infer the existence or non-existence of a fact which is in issue. • This is called circumstantial evidence.

  5. COLLATERAL FACTS • Affects the credibility of a witness. • Goes to weight of evidence • Affects competence of witness • Preliminary facts which are proved as a condition precedent to the admissibility of certain kinds of evidence.

  6. TYPES OF EVIDENCE • Testimony • evidence made orally • Direct testimony • Statements of a fact of which witness has first hand knowledge • Hearsay • Any out of court statement offered as evidence of the truth of its contents

  7. TYPES OF EVIDENCE • Original evidence • Evidence of an out of court statement tendered for any relevant purpose other than that of proving the truth of the facts contained in it. • Real evidence • A material object produced for inspection • Documentary evidence • Produced as real or original evidence, or hearsay

  8. TYPES OF EVIDENCE • Primary evidence • Evidence of the best kind • e.g. original documents • Secondary evidence • Evidence of inferior kind • e.g. photostat copies • Circumstantial evidence • evidence of facts relevant to the existence or non-existence of a fact in issue

  9. BURDEN OF PROOF • Which party has to prove what? • Legal burden • requirement to prove a fact in issue • Evidential burden • the requirement to obtain sufficient evidence to justify a favourable finding of a fact in issue

  10. LEGAL BURDEN • Those who allege must prove • Statute may set out who has to prove what. Some acts shift onus of proof. • Wording of contract would be important. • In negative assertions those who allege still must prove.

  11. LEGAL BURDEN • Policy decisions may be made in difficult cases - onus placed on person who would find it less difficult to prove. • Must prove on balance of probabilities, the evidence must show that the fact was more probable than not (Miller v. Minister of Pensions)

  12. EVIDENTIAL BURDEN • The party bearing the legal burden usually bears the evidential burden • Distinguish from prima facie • Before evidence acceptable judge must be satisfied by prima facie evidence.

  13. PRIMA FACIE EVIDENCE • E.g. in order to admit tape recordings judge must satisfy himself that a prima facie case of originality has been made out be evidence which defines and describes the provenance and history of the recordings up to the moment they appear in court. (R v. Robson (1972)) • Photographs and videos need only show proof that they refer to event in question

  14. PRIVELEGE • Legal professional privilege • Certain communications between lawyer and client cannot be elicited from client • Certain communications relating to pending or contemplated litigation between lawyer and client or third parties cannot be elicited from client • Relates mainly to communications for giving legal advice and pending legal action

  15. WITHOUT PREJUDICE • Negotiations for settlement of an action are made without prejudice and therefore privileged • Normally includes ‘without prejudice’ on documentation but does not have to, test is whether it is part of negotiation. • Even if marked without prejudice and correspondence not part of settlement then statement of no use.

  16. ORGANISING INFORMATION • In order to succeed in an action you need to prove or disprove facts logically. • For example it has to be proved that a third party driver was negligent. • Diagrams can assist with this approach • Start with event to be proved and work downwards • Check that all points can be proved on balance

  17. DIAGRAMS Negligent TP Wrong side of road Too fast D 90 65 C 85 A A C B

  18. END OF EVIDENCE

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