Introduction to the Law of Evidence

Question 1

What is the ultimate issue?

Answer 1

The ultimate issue of the trial is whether the accused is guilty as charged.

Question 2

What are the facts in issue?

Answer 2

• Identity of the accused: is the accused the subject of the offence?
• The nature of the act: the actus reus
• Any necessary knowledge or intent to commit the act: mens rea

Question 3

What authority determined the facts in issue?

Answer 3

R v Sims [1946]:

“Whenever there is a plea of not guilty, everything is in issue and the prosecution has to prove the whole of their case including the identity of the accused, the nature of the act and the existence of any necessary knowledge or intent”.

Question 4

What are collateral facts?

Answer 4

Collateral facts mainly take on three forms:

1. The credibility of a witness: What if a witness is biased e.g. Thomas v David (1836) where the witness was the mistress of the person calling her.
2. Legal ability to testify: is the witness competent?
3. Whether a pre-condition for admitting an item of evidence has been satisfied; also known as a preliminary fact.

Question 5

What is circumstantial evidence?

Answer 5

Circumstantial evidence does not prove the immediate existence of a fact in issue, but is evidence from which the existence of a fact in issue can be inferred.

1. Evidence of opportunity (right time, right place)
2. Identity evidence (trace evidence)
3. Evidence of motive.
4. Evidence of planning.

Question 6

What precautions must be taken with regards to circumstantial evidence?

Answer 6

• Circumstantial evidence has a cumulative effect.
  
  • On its own, the evidence carries little weight.
  • If there is lots of circumstantial evidence, they will carry a lot of weight.
• Often proves the mens rea.
• Teper v R - Circumstantial evidence must be narrowly examined

Question 7

What authorities discuss the relevance of evidence?

Answer 7

Lord Simon, DPP v Kilbourne 1973: “Evidence is relevant if it is logically probative/disprobative of a matter which requires proof.”

R v Blastland : to assess relevance is a matter of degree. Defendant wanted to call in evidence that someone else knew of the murder before it became public knowledge. Deemed unrelevant as did not prove/disprove the fact in issue.

R v Kearley: Police raided house but only found a small amount of drugs and cash (could not infer intent to supply). Wanted to adduce evidence of phone calls asking for drugs - deemed not relevant as the phone calls were not traced.

Question 8

What is the weight of evidence?

Answer 8

The weight of evidence is its quality, cogency or probative value in relation to the facts in issue. It is a matter of degree, and takes in to account:

• Other evidence in the case;
• In the case of testimony - Demeanour, credibility and plausibility.
• In the case of document - authenticity and reliability.

Question 9

What is probative value and the prejudicial effect?

Answer 9

Probative value is an evaluation of the extent to which an item of evidence proves a case.

Prejudicial effect is an evaluation of the risk that the evidence will be used by the tribunal in an inappropriate way.

Question 10

What determines the admissibility of evidence?

Answer 10

• Does not follow that sufficiently relevant evidence will be submitted.
• It will be admissible unless excluded by an exclusionary rule or as a matter of the judge’s discretion
• Exclusionary rules:
  
  • ​Incompetence of a witness
  • Evidence of accused’s bad character
  • Hearsay
  • Non-expert opinion.