Chapter 1: Andrew L-T Choo
Introduction:
Evidence is the information with which the matters requiring proof in a trial are proved. The study of
evidence, therefore, is the study of the process by which such matters are proved in court.
Facts un Issue and Collateral Facts
All evidence must be relevant to the specific case to either a fact in issue or a collateral fact. A fact in
issue is a fact that must be proved by a party in a case in order for that party to succeed in action.
This can be classed as an essential fact. The facts in issue in a specific case are dependent on the
substantive law of evidence.
For example, in a murder case the prosecution must in order to succeed prove that (1) the defendant
caused the victims death, (2) doing so with the necessary mens rea. This leading to (1) and (2)
constitute the facts in issue in the case.
The three facts in issue in a tort action for negligence; the claimant must prove (1) the existence of a
duty of care, (2) breach of that duty, and (3) the consequential loss. A fact that is not a fact in issue
but is relevant to a fact in issue is known as a relevant fact or factum probans.
A collateral fact is a fact of which proof may be permitted but which does not constitute a fact in issue
or a fact that is relevant to a fact in issue. The credibility of a witness is a classic collateral fact.
Court of Appeal noted:
“The assessment of credit is not exclusively a logical process. Juries invariably are directed to use
their ‘knowledge of human nature’ when deciding whether a witness is telling the truth, and the law not
only permits but requires them to form their subjective though collective view, taking such account of
demeanour, motive, consistency and other characteristics of the person they have seen giving
evidence as they think fit. In this broad sense, certain matters can be described as ‘relevant to credit’,
but this is something different from relevance meaning logically probative of an issue”.
Relevance, admissibility and weight
Evidence must be relevant before it can be used in court. If it is relevant and does not infringe any
exclusionary rule, it will be admissible. Admissible evidence can, however, be excluded in the
exercise of judicial discretion. Any admissible evidence is not excluded in the exercise of discretion
will be admitted.
Relevance. This links to the question “whether evidence is relevant depends not on abstract legal
theory but on the individual circumstances of each particular case’.
An item of evidence is relevant so long as it has probative value or probative force, however little. As
Lord Simon of Glaisdale explained in DPP v Kilbourne:
“Evidence is relevant if it is logically probative or disprobative of some matter which requires proof …
It is sufficient to say, even at the risk of etymological tautology, that relevant (ie, logically probative or
disprobative) evidence is evidence which makes the matter which requires proof more or less
probable”.
Wigmore has brought up an approach where a distinction is made between logical relevance and
legal relevance and legal relevance. Evidence is not prima facie admissible unless it is legally
relevant. To be legally relevant, it may be necessary for that item of evidence to possess some ‘plus
value’ in the shape of additional probative value:
Logical relevance + ‘Plus value’ = Sufficient relevance/legal relevance
, Direct Evidence and Circumstantial Evidence
Circumstantial evidence may be conclusive, but it must always be narrowly examined, if only because
evidence of this kind may be fabricated to cast suspicion on another.
Examples of circumstantial evidence:
Opportunity; circumstantial evidence of opportunity to commit a crime may be provided, for example,
by evidence of the presence of the accused at the time of, and at the scene of, the crime.
Fingerprints and Bodily Samples; the fact that an object found at the scene of the crime bore the
accused’s fingerprints constitutes circumstantial evidence of the identity of the perpetrator, as does
the fact that samples taken from the accused’s body match those taken from the victim.
Continuance; The fact that an event was taking place at a certain point in time may give rise to the
inference that it was also taking place at a (sufficiently proximate) prior 20 or subsequent21 point in time.
Post-Offence conduct; The Supreme Court of Canada has succinctly explained:
“Under certain circumstances, the conduct of an accused after a crime has been committed may
provide circumstantial evidence of the accused’s culpability for that crime. For example, an inference
of guilt may be drawn from the fact that the accused fled from the scene of the crime or the jurisdiction
in which it was committed, attempted to resist arrest, or failed to appear at trial. Such an inference
may also arise from acts of concealment, for instance where the accused has lied, assumed a false
name, changed his or her appearance, or attempted to hide or dispose of incriminating evidence. 22”
Reactions of Tracker Dogs;
… if a dog handler can establish that a dog has been properly trained and that over a period of time
the dog’s reactions indicate that it is a reliable pointer to the existence of a scent from a particular
individual, then that evidence should properly be admitted.
However, it is important to emphasise two safeguards. First, the proper foundation must be laid by
detailed evidence establishing the reliability of the dog in question. Secondly, the judge must, in giving
his directions to the jury, alert them to the care that they need to take and to look with circumspection
at the evidence of tracker dogs, having regard to the fact that the dog may not always be reliable and
cannot be cross-examined [or indeed even examined].23
Motive; motive may constitute important circumstantial evidence. Thus:
Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to
shew he entertained feelings of enmity towards the deceased … Evidence of motive necessarily goes
to prove the fact of the homicide by the accused, as well as his ‘malice aforethought’, inasmuch as it
is more probable that men are killed by those who have some motive for killing them than by those
who have not.24
Adverse inferences; in civil trials, te failure of one party to give evidence or call witnesses may
giverise to the inference that the other party’s version of the facts withheld by the first party is correct.
As the Court of Appeal has explained in four steps;
1. (1) In certain circumstances a court may be entitled to draw adverse inferences from the
absence or silence of a witness who might be expected to have material evidence to give on an
issue in an action.
2. (2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced
on that issue by the other party or to weaken the evidence, if any, adduced by the party who
might reasonably have been expected to call the witness.
3. (3) There must, however, have been some evidence, however weak, adduced by the former on
the matter in question before the court is entitled to draw the desired inference: in other words,
there must be a case to answer on that issue.
4. (4) If the reason for the witness’s absence or silence satisfies the court, then no such adverse
inference may be drawn. If, on the other hand, there is some credible explanation given, even if
Introduction:
Evidence is the information with which the matters requiring proof in a trial are proved. The study of
evidence, therefore, is the study of the process by which such matters are proved in court.
Facts un Issue and Collateral Facts
All evidence must be relevant to the specific case to either a fact in issue or a collateral fact. A fact in
issue is a fact that must be proved by a party in a case in order for that party to succeed in action.
This can be classed as an essential fact. The facts in issue in a specific case are dependent on the
substantive law of evidence.
For example, in a murder case the prosecution must in order to succeed prove that (1) the defendant
caused the victims death, (2) doing so with the necessary mens rea. This leading to (1) and (2)
constitute the facts in issue in the case.
The three facts in issue in a tort action for negligence; the claimant must prove (1) the existence of a
duty of care, (2) breach of that duty, and (3) the consequential loss. A fact that is not a fact in issue
but is relevant to a fact in issue is known as a relevant fact or factum probans.
A collateral fact is a fact of which proof may be permitted but which does not constitute a fact in issue
or a fact that is relevant to a fact in issue. The credibility of a witness is a classic collateral fact.
Court of Appeal noted:
“The assessment of credit is not exclusively a logical process. Juries invariably are directed to use
their ‘knowledge of human nature’ when deciding whether a witness is telling the truth, and the law not
only permits but requires them to form their subjective though collective view, taking such account of
demeanour, motive, consistency and other characteristics of the person they have seen giving
evidence as they think fit. In this broad sense, certain matters can be described as ‘relevant to credit’,
but this is something different from relevance meaning logically probative of an issue”.
Relevance, admissibility and weight
Evidence must be relevant before it can be used in court. If it is relevant and does not infringe any
exclusionary rule, it will be admissible. Admissible evidence can, however, be excluded in the
exercise of judicial discretion. Any admissible evidence is not excluded in the exercise of discretion
will be admitted.
Relevance. This links to the question “whether evidence is relevant depends not on abstract legal
theory but on the individual circumstances of each particular case’.
An item of evidence is relevant so long as it has probative value or probative force, however little. As
Lord Simon of Glaisdale explained in DPP v Kilbourne:
“Evidence is relevant if it is logically probative or disprobative of some matter which requires proof …
It is sufficient to say, even at the risk of etymological tautology, that relevant (ie, logically probative or
disprobative) evidence is evidence which makes the matter which requires proof more or less
probable”.
Wigmore has brought up an approach where a distinction is made between logical relevance and
legal relevance and legal relevance. Evidence is not prima facie admissible unless it is legally
relevant. To be legally relevant, it may be necessary for that item of evidence to possess some ‘plus
value’ in the shape of additional probative value:
Logical relevance + ‘Plus value’ = Sufficient relevance/legal relevance
, Direct Evidence and Circumstantial Evidence
Circumstantial evidence may be conclusive, but it must always be narrowly examined, if only because
evidence of this kind may be fabricated to cast suspicion on another.
Examples of circumstantial evidence:
Opportunity; circumstantial evidence of opportunity to commit a crime may be provided, for example,
by evidence of the presence of the accused at the time of, and at the scene of, the crime.
Fingerprints and Bodily Samples; the fact that an object found at the scene of the crime bore the
accused’s fingerprints constitutes circumstantial evidence of the identity of the perpetrator, as does
the fact that samples taken from the accused’s body match those taken from the victim.
Continuance; The fact that an event was taking place at a certain point in time may give rise to the
inference that it was also taking place at a (sufficiently proximate) prior 20 or subsequent21 point in time.
Post-Offence conduct; The Supreme Court of Canada has succinctly explained:
“Under certain circumstances, the conduct of an accused after a crime has been committed may
provide circumstantial evidence of the accused’s culpability for that crime. For example, an inference
of guilt may be drawn from the fact that the accused fled from the scene of the crime or the jurisdiction
in which it was committed, attempted to resist arrest, or failed to appear at trial. Such an inference
may also arise from acts of concealment, for instance where the accused has lied, assumed a false
name, changed his or her appearance, or attempted to hide or dispose of incriminating evidence. 22”
Reactions of Tracker Dogs;
… if a dog handler can establish that a dog has been properly trained and that over a period of time
the dog’s reactions indicate that it is a reliable pointer to the existence of a scent from a particular
individual, then that evidence should properly be admitted.
However, it is important to emphasise two safeguards. First, the proper foundation must be laid by
detailed evidence establishing the reliability of the dog in question. Secondly, the judge must, in giving
his directions to the jury, alert them to the care that they need to take and to look with circumspection
at the evidence of tracker dogs, having regard to the fact that the dog may not always be reliable and
cannot be cross-examined [or indeed even examined].23
Motive; motive may constitute important circumstantial evidence. Thus:
Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to
shew he entertained feelings of enmity towards the deceased … Evidence of motive necessarily goes
to prove the fact of the homicide by the accused, as well as his ‘malice aforethought’, inasmuch as it
is more probable that men are killed by those who have some motive for killing them than by those
who have not.24
Adverse inferences; in civil trials, te failure of one party to give evidence or call witnesses may
giverise to the inference that the other party’s version of the facts withheld by the first party is correct.
As the Court of Appeal has explained in four steps;
1. (1) In certain circumstances a court may be entitled to draw adverse inferences from the
absence or silence of a witness who might be expected to have material evidence to give on an
issue in an action.
2. (2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced
on that issue by the other party or to weaken the evidence, if any, adduced by the party who
might reasonably have been expected to call the witness.
3. (3) There must, however, have been some evidence, however weak, adduced by the former on
the matter in question before the court is entitled to draw the desired inference: in other words,
there must be a case to answer on that issue.
4. (4) If the reason for the witness’s absence or silence satisfies the court, then no such adverse
inference may be drawn. If, on the other hand, there is some credible explanation given, even if
