Evidence

Evidence Evidence is that which tends to prove or disprove the facts in dispute.  Evidence must be relevant to the questions in issue. It must be relevant as a matter of fact and common sense and must not be inadmissible at law. There may be direct eyewitness evidence of the matters in dispute in many cases. In other cases, it may be necessary to rely on circumstantial evidence only or a combination of direct and indirect evidence, Evidence of facts which in the common course of things, render the facts in dispute (in “issue”), more or less probable, is usually admissible. This is sometimes called “circumstantial” evidence. Circumstantial evidence should be logically relevant to the disputed facts. The most important type of evidence is verbal evidence given on oath or affirmation.  It is a fundamental feature of the common law system of criminal and civil justice, that a person putting forward facts in a claim may be subject to challenge, scrutiny and examination.… Read the rest

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Plenary Trial A full plenary trial is the norm in civil litigation. A notice of trial is served by the plaintiff, or by the defendant if the plaintiff defaults in so doing. The categories of case in which there is a right to a trial by jury, is relatively narrow,  being now limited to false imprisonment, assault, battery, defamation, malicious prosecution. A person entitled to a trial by jury may give notice of trial without a jury. In this case, there will be no jury unless another party within 14 days or such further time is allowed, gives notice that he wishes to have the matter heard by a jury. The notice of trial may be served at the closing of pleadings.  If the plaintiff has not done so, the defendant may apply to the court for liberty to give notice of trial.  If the plaintiff has not given notice of trial within six weeks, the defendant may give notice of trial or apply to dismiss the case.… Read the rest

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Legal Professional Privileges Legal professional privilege is designed to protect frank communications between lawyers and their clients.  Without privilege, a lawyer could not be properly instructed as the client would not be in a position to communicate with him, freely.  He should be in a position to discuss his case fully and openly, weaknesses and all.  Legal professional privilege protects this freedom. Legal professional privilege protects the administration of justice.  It maintains secrecy in discussions between lawyer and client.  In certain contexts, it is likely to be protected as a constitutional right. In some cases, the right must be weighed against other competing constitutional rights. Legal professional privilege is absolute.  The courts do not balance other considerations and interests against it. It is not limited to documents prepared for the purpose of litigation.  It covers any communications for the purpose of receiving legal advice.  Communications for such purposes to solicitors or barristers, on behalf of a party or persons he represents fall within the scope of the privilege.… Read the rest

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Effect of Privilege The effect of privilege is that a person may decline to answer certain questions as a witness or produce documents in discovery, even if they are relevant or would be otherwise admissible.  Most examples of privilege operate absolutely. They are not a matter of discretion on the part of the judge. Privilege must be claimed.  Neither the opposing party nor the judge is obliged to claim privilege on behalf of a party or advise him accordingly.  This does not apply in respect of certain rights of the accused, including in particular the accused right to silence, where constitutional considerations may require that the judge assists the unrepresented accused. Privileged evidence may be proved, otherwise than through a privileged medium.  For example, another witness may prove the same subject matter. Earlier approaches which allowed the admission of privileged evidence which had accidentally fallen into the opponent’s hands have been abandoned. … Read the rest

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Competence and Compellability Generally, any person is competent to give evidence provided he has the ability to give an intelligible account of the matters concerned.  Historically, the test of competence was whether the witness was in a position to understand the nature and consequences of the oath. A challenge may be made to the competence of children and persons suffering from mental disorder to the give evidence. The parties to civil litigation decide who they should call as a witness. Generally, this is not a matter for the Court. A witness may be compelled to testify on behalf of any party to the litigation. If he does not attend voluntarily, he may be required to attend by subpoena or a witness summons.  He can be compelled by the court to attend and to answer questions properly put. Failure to answer would constitute contempt of court. There are a limited number of witnesses who may not be compelled. … Read the rest

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Oral Trial the Norm The rules of court provide that in the absence of an agreement to the contrary, the general rule is that witnesses in court proceedings, are to give evidence court orally. The courts place a high value on the trial with verbal testimony and cross-examination, which gives the court (or jury) the opportunity to view the demeanour of the witness and assess their credibility. The court may for good reason, order that particular facts be proved by affidavit and that affidavits should be read at hearing on such conditions as are reasonable. The court may order that attendance shall be dispensed with and that a witness be examined by interrogatories by a commissioner or examiner. A prior application is made and the court must be satisfied that the witness is not bona fide required the persons for cross-examination. Where a cross-examination is bona fide required by the other party, the taking of evidence in this way is not permitted.… Read the rest

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Admissions I A major exception to the hearsay rule is that a statement made against the maker ’s interest is admissible, even if it is hearsay. The reason is that it is presumed that a  person will not have a motive to  make a false statement against his own personal or financial interests In civil cases, an admission may be made formally in the pleading themselves.  Alternatively, it may be made in response to a notice to admit facts prior to trial.  It may be informally agreed. Generally, admissions made by third parties are inadmissible as hearsay.  However, in some cases, the words and statements of third party will bind a party to the action.  This may happen, for example, where there is a relationship of agency, partnership or title involved. Admissions by an agent may be treated as the party’s admission. It must be made as the time the agency was in place. … Read the rest

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Opinion Evidence & Experts Generally, witnesses are not entitled to give evidence in relation to matters which are not within their direct knowledge.  They are not entitled to give opinions on facts or draw inferences from them.  In principle,  this is a matter for the judge or where there is a jury, the jury as directed by the judge. In modern times, with the advance of sciences, the role of the expert in the fact finding process has increased. Pathologist, forensic scientists, psychiatrists, DNA experts and fingerprint experts now play an important role in criminal proceedings.  Medical practitioners and specialists,  actuaries, accountants, surveyor and consultants commonly given expert evidence in civil cases. Opinion evidence given by experts is an exception to the general prohibition on opinion evidence.  Expert witnesses may assist the judge or jury with their expertise in drawing inferences which are outside of the knowledge and expertise of the judge or jury.… Read the rest

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Judicial Notice Certain facts may be proved without bringing forward verbal evidence. Judges take so-called “judicial notice” of certain facts which are so notorious or established that they do not require proof. In the case of judicial notice, the judge may decide the matter with reference to his own knowledge or with reference to sources which are incontrovertible and reliable. When something is judicially it need not be proven by evidence. Judicial notice will be taken of matters of common knowledge, in everyday life. There are no limits in principle to what may be judicially noted. Matters of everyday experience, geographical, historical facts, economic and social circumstances may be noted.  They must be so well established that they are not open to serious dispute. That which may be judicially noticed may change over time, relative to the current state of knowledge and the circumstances of society. The courts take notice matters such as periods of human gestation, facts of everyday life, economic facts of life.… Read the rest

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Hearsay Evidence Rule The most famous rule of evidence is that prohibiting hearsay. Hearsay is a statement made otherwise than in court, which is offered as evidence of the truth of its contents.  In the narrow and commonly understood sense, a witness may not generally relay that which another person said on another occasion as evidence of the truth of what that person said.  The rule also applies to statements in documents and a range of other express or implied assertions. Generally, a witness, who is not an expert, can only give evidence of matters of which he has direct first-hand knowledge. These must usually be matters which he has actually observed and perceived. A key lynchpin is based on the notion that cross-examination is most effective and meaningful when it relates to matters of first-hand observation. It is the other party’s right to challenge the observation, perception and credibility of the witness.… Read the rest

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General On any petition, motion or application evidence may be given by affidavit.  The court may order the production for cross-examination, of the person making any such affidavit. All affidavits shall be filed in the central office.  Those used in minor and wards of court matters are filed in the Wards of Court office.  Affidavits in bankruptcy matters are filed in the Examiner ’s office.  Affidavits in non-contentious probate matters are filed in the probate office. Every affidavit is to be entitled in the cause or matter in which it is sworn.  Where there is more than one claimant or defendant, it is sufficient to state the full name of the first claimant or defendant and other defendants or claimant as the case may be. Affidavits shall be confined to such facts as the witness is able of his own knowledge to assert.  They shall state his means of knowledge thereof.… Read the rest

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General Statutory declarations are used for the proof of facts in non-contentious (non-litigation) matters.  Statutes commonly require matters to be proved by way of statutory declaration. Legal practice, particularly in conveyancing and commercial transactions and matters, often requires proof of relevant facts and matters by way of a statutory declaration. A statutory declaration may be made before a notary public, commissioner for oaths, peace commissioner or other person authorised by law.  A practising solicitor may take a statutory declaration since 1994 legislation took effect. Every statutory declaration shall be signed by the person making the same in the presence of the person before whom it is made.  It is to be attested by the person before whom it is made by signing an attestation at the end of the text in the prescribed form. The form of statutory declaration is set out in the legislation.  The person who makes the declaration must solemnly and sincerely declares the relevant contentiously believing them same to be true.… Read the rest

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