Evidence Lecture 1
Evidence Lecture 1
Evidence Lecture 1
Types of Evidence:
The evidence by which facts may be proved or disproved in court is known as ‘judicial
evidence’. Types:
1. Direct Evidence
Evidence that proves or disproves a fact without inference. Directly establishes elements of
the offence or defence. The below 4 are types of direct evidence.
a. Testimony
Testimony is the oral statement of a witness made on oath in open court and offered as
evidence of the truth of that which is asserted. ‘Direct testimony’ is a term used to describe a
witness’s statement that he perceived a fact in issue with one of his five senses. In other
words, it is testimony relating to facts of which the witness has or claims to have personal or
first-hand knowledge.
b. Hearsay evidence and original evidence
Hearsay: The common law concept of hearsay may be defined as any statement, other than
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. It
is inadmissible. But it has exceptions.
Original Evidence: If the statement is tendered for any purpose other than that of proving the
truth of its contents, for example to prove simply that the statement was made or to prove
the state of mind of the maker of the statement, it is not hearsay but ‘original evidence’.
Provided that it is relevant to a fact in issue, original evidence is admissible. If I’m saying
that I felt something I saw this I heard this, it is original evidence, but if I say XYZ said
to me …. That is hearsay.
c. Documentary Evidence
Document or copy of document produced to court for inspection. Can include videos, photos,
audios, etc. Admitted to prove the contents or to prove the document exists. You have to
establish why you are admitting this document.
d. Real Evidence
A thing that is seen, or is admitted to show its existence. Like a weapon
2. Circumstantial Evidence
Evidence which requires an inference to prove or disprove a fact. See below for more.
For eg: motive, plans or preparatory acts, capacity (mental or physical capacity or incapacity
of doing the crime), opportunity (present at the time and place of the crime), identity
(fingerprints, etc), failure to give evidence or call witnesses (Prest v Petrodel Resources Ltd
adopted Lord Lowry’s view in R v IRC, ex parte TC Coombs & Co with one modification:
…..generally the silence of one party in face of the other party’s evidence may convert that
evidence into proof in relation to matters which are, or are likely to be, within the knowledge
of the silent party and about which that party could be expected to give evidence. Thus,
depending on the circumstances, a prima facie case may become a strong or even an
overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary
evidence) can be credibly explained, even if not entirely justified, the effect of his silence in
favour of the other party may be either reduced or nullified), failure to give bodily camples, (s
23(1) of Family Law Reform Act 1969, s 62(10) of the Police and Criminal Evidence Act
1984), see page 19-20 of the Book.
3. Collateral Facts:
Also called ‘subordinate facts’ I need these facts to adjure evidence. Are of 3 types:
a. Facts affecting the competence of a witness
Eg: witness having a mental disorder making him incompetent
b. Facts affecting the credibility of a witness
Eg: showing that the witness has lied about or mistaken a fact. Like he testifies that he saw
something 50 feet away but he can only see well upto 20 feet so he can be cross-examined
about his eyesight and can be confirmed with a doctor. Or, if he has any biases or partiality
or interests.
c. Facts which must be proved or disproved as a condition precedent to the
admissibility of certain items of evidence tendered to prove a fact in issue or relevant
fact (also called ‘preliminary facts’)
These facts have to exist before to introduce a piece of evidence.
It is about the evidence itself, the quality of evidence and the admissibility of evidence.
According to s76 of PACE Act 1984, a confession allegedly obtained by oppression and
torture is inadmissible. So, this is a preliminary fact disproving the evidence. However, it can
be admissible if prosecution proves beyond a reasonable doubt that it wasn’t obtained as so,
it can be admissible, thus it becomes a preliminary fact proving fact in issue (the confession).
Another example is that, the general rule is that the documents of the court should be
originals, but if it is proven beyond a reasonable doubt that the original cannot be obtained
or is destroyed, the copy is admissible, so the original being destroyed is the preliminary fact
regarding the document (which is either the fact in issue or the relevant fact).
The existence or non-existence of a preliminary fact is decided by the judge. In a criminal
case, a finding by the judge on a preliminary fact, generally decided in the absence of the
jury, is not binding on the jury. Thus, if the prosecution proves beyond reasonable doubt that
a confession was not obtained by oppression, and the confession is therefore admitted in
evidence, and evidence of the oppression is then given in the trial, the jury may conclude
that the confession was in fact obtained by oppression.
Relevance:
Definition: Art 1 of Stephen’s A Digest of the Law of Evidence:
“any two facts to which it is applied are so related to each other that according to the
common course of events one either taken by itself or in connection with other facts proves
or renders probable the past, present or future existence or non-existence of the other.”
All pieces of evidence must be relevant in order to be admissible.
“Evidence is relevant if it is logically probative or disapprobative of some matter which
requires proof” – DPP v Kilbourne [1973] AC729 at 756, HL.
Case facts: D convicted of sexual assault for two groups of boys. Counts 1 to 4 referred to
offences alleged to have been committed in 1970 and involved four boys; counts 5 to 7
alleged offences committed a year later and involved two other boys. The prosecution
alleged that the accused encouraged the boys to come to his house by providing them with
various inducements and having got them into his house he committed the acts charged in
the indictment. The accused admitted that the boys had come to his house but claimed that
his association with them had been entirely innocent.
Held: The judge directed the jury that, whereas the boys in each of the two groups knew
each other well and could have collaborated in putting forward their stories, it was unlikely, if
not impossible, for the two groups to have collaborated in that way and accordingly they
were entitled to take the evidence of the boys in one group as corroborating the evidence of
the boys in the other group. The Court of Appeal quashed the convictions holding that,
although the evidence of the boys of one group was admissible in relation to charges
concerning boys of the other group as tending to show that the accused was a homosexual
whose proclivities took a particular form and as tending to rebut the defence of innocent
association, that evidence could not in law constitute corroboration of the evidence of boys
of the other group. The prosecution appealed.
CoA: The appeal would be allowed. The word 'corroboration' had no special technical
meaning; by itself it meant no more than evidence tending to confirm other evidence. No
distinction could, therefore, be drawn between evidence which could be used as
corroboration and evidence which might help the jury to determine the truth of the matter.
Since the evidence of one group of boys was admissible in relation to the charges
concerning the other group as being relevant to matters in dispute and implicating the
accused in the criminal conduct alleged, that evidence, if believed, constituted corroboration.
“Relevance is a question of degree determined, for the most part, by common sense and
experience” – Lord Steyn R v Randall [2004] 1 WLR 56
Case facts: Two defendants accused of murder each sought to place blame for the victim’s
death on the other. One sought to rely upon the other’s record of violence as evidence of his
co-accused’s propensity to violence.
Held: The record was admissible. By putting his own record in issue, the co-defendant had
lost the protection of the s 1(3) of Criminal Evidence Act 1898: ‘where evidence of propensity
of a co-accused is relevant to a fact in issue between the Crown and the other accused it is
not necessary for a trial judge to direct the jury to ignore that evidence in considering the
case against the co-accused. Justice does not require that such a direction be given.
Moreover, such a direction would needlessly perplex juries. ‘Lord Steyn: ‘It is no answer to
admitting [similar fact] evidence that it is evidence of the propensity of the accused to commit
certain crimes. On the contrary, that is often the very reason for admitting such evidence.
While these rules are not applicable in this case their rationale illustrates that propensity to
commit certain crimes may sometimes be relevant to the fact in issue.’
Irrelevance:
Other information that does not help prove or disprove a fact that needs proof. Not
admissible. Should not even be called evidence.
R v Blastland
How strict judges should be about relevance?
Facts: A charged with buggery and murder at 12yo. He said that he paid a boy to do
intercourse willingly but he stopped cuz the boy started to feel pain. The third-party Mr. M
saw this. A case was that he didn’t rape the boy, Mr. M raped and killed him. The evidence
wasn’t admitted by the judge was that a woman lived with Mr. M said that Mr. M admitted to
the killing, cuz it was hearsay.
Seminar 2:
Non-leading questions: what, when, why, where, how?
Where do you live? Oud mehta
What time did you wake up? 6:30 am
Why did you wake up at that time? So, I can get my breakfast get myself ready and his dad
leaves around the time to go to bus stop
When did you sleep the night before to make sure you woke up at that time? Around 11 pm
How did you come to uni? By bus.
What time did you reach uni? Around 8:20
What did you do after reaching uni? I got water and tgats about it, revised some topics.
Revised topics for what? Evidence. didn’t have much time
Why didn’t you have time? The bus was a bit late.
What was the reason you reached uni at 8:20? Usually I reach around 8 but the bus was
late, if I was early more time to read
Why is 8-8:20 window the time frame yu reach uni?
Why don’t you take a later bus? Past 9
Whats the issue with reaching past 9? Late to stuff
Late to what stuff? Evidence.