Evidence - definitions

Question 1

Evidence

Answer 1

The material offered in Court during a trial for the purpose of enabling the finder of fact […] to reach a decision on the issues in dispute.

Question 2

Relevance

Answer 2

Evidence is relevant if it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding.

Question 3

Legal burden

Answer 3

The obligation of a party to satisfy a court to the appropriate standard or level of proof on a particular issue either by a preponderance of evidence or beyond reasonable doubt.

Question 4

Evidential burden

Answer 4

The obligation to adduce enough evidence on a particular issue to warrant the court to at least consider it (sometimes called ‘passing the judge’).

Question 5

Leading questions

Answer 5

Either suggests the desired answer (e.g. he hit you, didn’t he?) or assumes a fact which has yet to be established by the evidence (e.g. what did he do after he hit you?).

Exceptions: per s37 EAC:
(a) The court gives leave;
(b) Introductory matters;
(c) No objection is made;
(d) Matters not in dispute; or
(e) Specialised knowledge (experts).

Question 6

Hearsay (common law)

Answer 6

An oral or written assertion, other than one made by a witness while testifying in the proceedings, is inadmissible as evidence of the truth of any fact or opinion asserted.

Evidence of a statement is hearsay and inadmissible when the objective is to establish the truth of what occurred in the statement. It is not hearsay and is admissible when it is proposed to establish, not the truth of the statement, but the fact that the statement was made: Subramaniam v Public Prosecutor.

Question 7

Hearsay (s59(1) EAC)

Answer 7

Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

Question 8

Probity

Answer 8

Weight likely to be given to something by the court; greater the weight, more probative

Question 9

Prejudice

Answer 9

Evidence to which considerable weight is likely to be given for the wrong reasons

Question 10

Credit

Answer 10

Witness’ character as a person (e.g. prior conviction of perjury)

Question 11

Credibility

Answer 11

Witness’ believability giving evidence on a particular issue/fact (e.g. vision obscured)

Question 12

Character

Answer 12

Person’s reputation in the community

Question 13

Propensity

Answer 13

Person’s ‘proven behaviour in the past’ as it pre-supposes future behaviour

Question 14

The Finality Rule - what is it and what are the exceptions?

Answer 14

The first answer given by a witness to a question going solely to credit (c.f. Facts in issue or credibility) is the final answer and the cross-examining party will not be allowed to pursue the matter by calling other witnesses in rebuttal.

Rationale: avoid endless collateral issues.

Exceptions:
1. Prior inconsistent statements
2. Criminal history
3. Bias
4. Witness’ reputation for lack of veracity
5. Physical or mental incapacity

Consider sections 20-21 EAQ and sections 41,102 and 106 EAC

Question 15

Res gestae

Answer 15

Two key components:
1. Contemporaneity.
2. Mind of utterer still dominated by the event excluding the opportunity for quiet reflection/invention of a falsehood.

Five elements to consider:
1. Can the possibility of “concoction or distortion be disregarded?
2. Was there a real opportunity for reasoned reflection?
3. Was the event that triggered the utterance still dominating the thoughts of the maker?
4. Are there any special features that suggest a motive for fabrication?
5. Could error have crept in for any other special reason such as the maker being drunk/drugged?

Question 16

Tripodi principle

Answer 16

Conspiracy – joint enterprise to commit criminal acts.

Once there is “reasonable evidence” from which an agreement can be inferred, the acts and declarations of the co-conspirators in furtherance of the agreement may be used to prove not only the existence of the conspiracy, but also the accused’s participation in it.