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What are the two levels to the law of evidence?

1. Facts in issue (Also known as essential/crucial facts._
⁃ These are the facts that need to be proven for a certain charge to be proven.

2. Evidential facts
⁃ These are facts from which inferences can be drawn about a fact in issue.


What is the general rule about relevancy of evidence?

Evidence will not be admitted before a court unless it is relevant to the matter the court is to decide. Fact A is relevant evidence of fact B when the existence of A renders the existence of B more likely or probable.

This is not a legal matter but is one of fact and logic:
⁃ "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" (DPP v Kilbourne [1973] per Lord Simon of Glaisdale).

Relevancy is concerned with what facts may legally be proved with a view to establishing or disproving the issue or issues that are the subject-matter of the enquiry before the court. Facts in issue ascertained by written pleadings or criminal complaint. Evidence is relevant depending on whether or not it has a reasonably direct bearing on the subject under investigation


W Alexander & Sons Ltd v Dundee Corporation 1950

a company who owned a fleet of buses. The buses had been damaged skidding on the street. The company brought an action against dundee corporation who maintained the street. The question was whether evidence as to the condition of the street a few years previously would be relevant in this case. The court held that this was relevant, rather than collateral, so could not be excluded.


Dennison v Chief Constable 1996

the argument about relevancy concerned whether evidence as to previous acquittals of the individual were relevant or not. The court held that while they were of limited relevancy, nonetheless the full narrative of the situation (including previous acquittals) ought to be before the court.

*Facts aren’t important. These are civil proceedings. An individual had raised an action of damages against a police officer. The chief constable wished for details of a pursuers previous…the court said these averments on the part of the constable about this acquittal were of limited relevancy but the full narrative should be put before the court so the court can see the full picture.


Donoghue v Stevenson 1932

Don't confuse relevancy as part of the law and practice of evidence with the plea of relevancy as matter of law


What are the reasons particular evidence may not be admissible?

Even if evidence is relevant [Probative or disprobative of a fact in issue.] it might not be admissible. There are legal rules restricting admissibility.

The reason particular evidence may not be admissible is usually to further another goal:

⁃ a) Collateral Evidence: Setting a limit to the scope of any judicial enquiry by excluding evidence of collateral matters (e.g. evidence about character[ Since it may well alter the impression of the person in question but may not have any bearing on the actual incident.]).

⁃ b) Unreliable Evidence: Ensuring that as far as practicable the truth is ascertained and therefore excluding unreliable evidence (e.g. rules against hearsay evidence)

⁃ c) Promoting a goal or policy other than truth-finding (e.g. protection of solicitor-client confidentiality or evidence obtained under illegal methods e.g. search without a warrant)


How may evidence be classified?

1) Direct or circumstantial
⁃ Evidence is direct[ It is generally appreciable by the senses or contained in a document (e.g. eyewitness testimony).] when it points to a fact in issue before the court.
⁃ Indirect or circumstantial evidence is when it points to one fact from which a court or jury may infer a fact in issue. Normally this inference can be made only by combining a number of pieces[ The best analogy is a cable/rope with a number of different layers wrapped around one another. If one unravels then it will not necessarily mean there is no evidence but it will mean the evidence is less strong.] of circumstantial evidence.

a. W Alexander & Sons Ltd v Dundee Corporation 1950 - the evidence about the condition of the roads was circumstantial evidence.

b. Forrester v HMA 1952 - man suspected of safe blowing. He wasn't caught in the act but was apprehended at a later stage and charged with blowing safes. He was examined by a police doctor who found a cut on his finger which corresponded with a cut on his glove that was found at the crime-scene. There was a small piece of material in his pocket which corresponded with material found at the crime scene. He was also arrested in possession of some bank-notes. The argument on behalf of the Crown was that this was sufficient circumstantial evidence that forms a 'cable' - i.e. combined it warranted the finding of guilt. The court held that the materials found on him could not be proven to match those at the crime scene, and thus certain aspects of the circumstantial evidence were not weighty enough to warrant the inference of guilt.

c. Withers v HMA 1947 - purely circumstantial evidence in the case of murder was deemed to be sufficient.

d. Gillespie v McMillan 1957: Analogies of chain and cable - it is better to think about direct evidence as a cable. (Facts not important) - case relating to speeding in a car, he was convicted. The evidence in this case came from two police officers (one at point A and B) who calculated his speed.

2) Primary or secondary
⁃ Primary evidence comes from the witness's own knowledge, or an original (principal) document or article.
⁃ Secondary evidence is evidence by a witness of what he heard someone else say, or a copy of a document or photograph of an article, etc.

⁃ This distinction is important in connection with the 'best evidence' rule which states that where primary evidence is available, secondary evidence is not admissible.

3) Oral, written or real evidence
⁃ Real evidence is preferable but in some cases other types of evidence are more practicable.
- This classification turns on the nature or source of the evidence. Some types of written and all real evidence must be 'spoken to' (ie explained) by oral evidence.

a. Maciver v Mackenzie 1942 - while it is generally preferable to have real evidence in the court, it would not be right for certain things like a shipwreck to be in the court. The HC held: so long as there is no practical difficulty in doing so. The question in each case is whether the real evidence is essential. The court observed that it is proper practice to produce any article referred to in an indictment. As long as we can bring in the primary evidence we can do so.

b. Anderson v Laverock 1976 - salmon which were alleged to have been stolen 6 months previously were not required to be present in the courtroom.


How is the weight of evidence determined?

The notion of weight of evidence as distinct from its relevance or admissibility is a matter of fact rather than a matter of law. So in a jury trial, the jurors must determine the weight to ascribe to particular evidence.

This is distinct from its relevance or admissibility. Weight is determined by the trier of fact (ie a jury if there is one). This is of importance concerning the scope of possible appeals.

e.g. Failure to call a particular witness may affect the weight of another witness, and sufficiency of evidence will be weighed up by the jury.


How is the necessity of evidence determined?

Certain types of facts do not require proof by evidence, eg facts formally admitted, facts within judicial knowledge, facts which are covered by conclusive presumptions.

Only the facts that need to be proved should be put forward, e.g. Facts through judicial knowledge do not need to be proved by evidence.

S.256 Criminal Procedure (S) Act - once these are proved there is no need for the prosecution or defence to re-tread old ground.


Is there a unified law of evidence?

Despite significant parallels between the rules of evidence in each, since the potential punishment in criminal trials is much more severe, the rules of evidence are often much more strict.