PRELIMARY EVIDENTIAL MATTERS NOTES
a. The basic principles of evidence
Facts in issue → the facts that any party needs to prove in order to prove its case. Include
the facts the P bears burden of proving/disproving and the facts the accused bears the
burden of proving. The facts in issue are determinable by reference to the legal ingredients
of the offence charged and the offence raised. SO: any fact formally admitted (“any fact of
which oral evidence may be given in any criminal proceedings”) under s10 CJA 1967 ceases
to be in issue; it must be taken to have been proved. A party who accepts another party’s
experts’ conclusions may admit them as fact under s.10 (CrimPR 19.3).
A judge is permitted to take judicial notice of a fact on enquiry e.g. judge might not know a
fact off the top of his head BUT could find out easily from a source. The parties would ask
the judge to take judicial notice on enquiry and simply let the judge look up the answer.
F1.3 Formal admissions → Usually written admissions should be put before the jury,
provided they are relevant to an issue and do not contain any material which cannot go
before the jury. FA’s may be made by Counsel or a solicitor orally (s. 10(2)(b)+ (d). The fact
admitted should appear clearly on the shorthand note. Where a party introduces a fact
admitted by another party, or parties jointly admit a fact, then unless the court otherwise
directs, a written record must be made of the admission (CrimPR 24.6( MC) and 25.13 (CC).
FA’s made with the benefit of advice - leave to withdraw them is unlikely to be given under
s. 10(4) w/o cogent evidence from the accused and those advising him that the admissions
were made by mistake or misunderstanding.
s.10 applies where relevant facts are in a written schedule which the P’s agree to put before
a jury and to any facts removed from the schedule, pending a judicial ruling on their
admissibility, on their reinstatement following a judicial ruling in favour of admissibility.
F1.11 The cardinal rule of evidence = subject to the exclusionary rules, all evidence which is
sufficiently relevant to the facts in issue is admissible. Relevant evidence may be excluded
if no reasonable jury, properly directed as to its defects, could place any weight on it. Also,
all evidence irrelevant to the facts in issue should be excluded → to the extent that offences
of strict liability involves no proof of mens rea, evidence of motive, intention or knowledge
is inadmissible, being irrelevant to what P has to prove and prejudicial to D.
F1.12 The meaning of relevance = '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'. E.g. evidence that co-accused had then attacked D
with a knife relevant to defence of duress from threats b/c more likely feared for safety.
Evidence is relevant if it is logically probative or disprobative of some matter which
requires proof (DPP v Kilbourne [1973]).
F1.14 Relevance of good character of P witness→ generally inadmissible to bolster
credibility but may be admissible if relevant to an issue in the case e.g. for defence of self-
a. The basic principles of evidence
Facts in issue → the facts that any party needs to prove in order to prove its case. Include
the facts the P bears burden of proving/disproving and the facts the accused bears the
burden of proving. The facts in issue are determinable by reference to the legal ingredients
of the offence charged and the offence raised. SO: any fact formally admitted (“any fact of
which oral evidence may be given in any criminal proceedings”) under s10 CJA 1967 ceases
to be in issue; it must be taken to have been proved. A party who accepts another party’s
experts’ conclusions may admit them as fact under s.10 (CrimPR 19.3).
A judge is permitted to take judicial notice of a fact on enquiry e.g. judge might not know a
fact off the top of his head BUT could find out easily from a source. The parties would ask
the judge to take judicial notice on enquiry and simply let the judge look up the answer.
F1.3 Formal admissions → Usually written admissions should be put before the jury,
provided they are relevant to an issue and do not contain any material which cannot go
before the jury. FA’s may be made by Counsel or a solicitor orally (s. 10(2)(b)+ (d). The fact
admitted should appear clearly on the shorthand note. Where a party introduces a fact
admitted by another party, or parties jointly admit a fact, then unless the court otherwise
directs, a written record must be made of the admission (CrimPR 24.6( MC) and 25.13 (CC).
FA’s made with the benefit of advice - leave to withdraw them is unlikely to be given under
s. 10(4) w/o cogent evidence from the accused and those advising him that the admissions
were made by mistake or misunderstanding.
s.10 applies where relevant facts are in a written schedule which the P’s agree to put before
a jury and to any facts removed from the schedule, pending a judicial ruling on their
admissibility, on their reinstatement following a judicial ruling in favour of admissibility.
F1.11 The cardinal rule of evidence = subject to the exclusionary rules, all evidence which is
sufficiently relevant to the facts in issue is admissible. Relevant evidence may be excluded
if no reasonable jury, properly directed as to its defects, could place any weight on it. Also,
all evidence irrelevant to the facts in issue should be excluded → to the extent that offences
of strict liability involves no proof of mens rea, evidence of motive, intention or knowledge
is inadmissible, being irrelevant to what P has to prove and prejudicial to D.
F1.12 The meaning of relevance = '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'. E.g. evidence that co-accused had then attacked D
with a knife relevant to defence of duress from threats b/c more likely feared for safety.
Evidence is relevant if it is logically probative or disprobative of some matter which
requires proof (DPP v Kilbourne [1973]).
F1.14 Relevance of good character of P witness→ generally inadmissible to bolster
credibility but may be admissible if relevant to an issue in the case e.g. for defence of self-
