#10392 - Preliminary Matters - BPC Criminal Litigation (formerly BPTC) 2024/2025

Preliminary Evidential Matters

Terminology

Proof

Process of convincing the tribunal of fact of a particular conclusion, by use of facts and logic (arguments)

Proving a fact – achieved by combining material

Implicit standard – below which the conclusion is “unproven”

Facts and arguments do not have equal value in “proving” a conclusion

Facts & Arguments

Proof – requires combination of facts and arguments (logic)

Facts – called by party in evidence

Arguments – made by counsel in speeches (ie. closing)

Evidence

Rules of evidence seek to allow evidence of all facts which are “relevant” – which must be proved to reach the conclusion

some facts may not be “proven” (shown) if the source of the evidence proving the fact is unreliable (eg. hearsay)

some facts may not be “proven” (shown) as they are not necessary for the conclusion – not relevant

Evidence may prove a fact – that fact may combine with other facts to prove a conclusion/fact.

Testimony

Oral statement of Witness on oath in open court – offered as evidence of truth of facts stated

“Direct testimony/evidence” - Witness saying he perceived a fact-in-issue directly with senses – ie. what facts claims to have personal first-hand knowledge of. (contrast with circumstantial evidence)

Hearsay & Original Evidence

Witness gives evidence of statement (of facts) heard but Witness does not know to be true

If tendered to prove that facts were stated (ie. statement was made) - “original evidence” as not being adduced to show statement is true, simply that it was made

If tendered to prove the facts stated (ie. that the facts are true) - “hearsay”

If Witness makes a statement (out of court) and then gives testimony that made the statement - “hearsay” if purpose is to prove that facts stated are true

Real Evidence

Usually material object produced for inspection in order for the court to draw inferences from what they observe/its existence/condition/value.

Little weight in the absence of accompanying testimony identifying the object and explaining its connection.

Documentary Evidence

Document produced for inspection by the Court or displayed electronically for inspection

Document – can include graphs, maps, plans, drawings etc.

Document produced to show content, existence or physical appearance

If doc produced to prove facts contained in it are true - “hearsay” (as this is not proved by doc itself)

Circumstantial Evidence

Evidence of relevant facts from which a fact-in-issue can be inferred (or absence of the fact-in-issue can be inferred)

Includes motive, even if irrational

Value by proving number of relevant facts all pointing to (inferring) existence/absence of a fact-in-issue

MR evidence will often be circumstantial as only Defendant saying “I intended to...” will be direct evidence.

Evidence that, eg, Defendant paused before hitting V – circumstantial evidence inferring intent (fact-in-issue)

Facts in Issue

Facts which Prosecution must prove to establish Defendant's guilt – Identity, AR, MR

and facts which Defendant must prove (Prosecution must disprove) to establish his defence

Formal Admissions

Prosecution or Defendant can formally admit any fact under s10 CJA 1967 – no longer in issue

Judicial Notice

If a fact is put on “judicial notice” - Prosecution does not have to prove it.

Can be put on “judicial notice” as matter of common knowledge (or by legislation)

In case Judge may take “judicial notice” of a fact – often after enquiry.

• “enquiry” - investigation – where fact-in-issue can be easily resolved by research to reliable sources.

Relevant Facts

Fact from which the existence/non-existence of a fact-in-issue may be inferred (directly)

Collateral Facts

Facts affecting admissibility or weight of evidence of relevant facts.

3 types:

1. Facts affecting the competence of a Witness,

• eg. Witness suffers from mental disorder rendering him incompetent to testify –

  • mental disorder is a “collateral fact”

2. Facts affecting the credibility of a Witness

• eg. Identity Witness is short-sighted –

  • short-sightedness is a “collateral fact”

  • Witness saw Defendant – “relevant fact”

3. Facts which must be proved as a condition precedent to the admissibility of certain evidence

• eg. Defendant was cautioned before confession –

  • caution is a “collateral fact”

  • Defendant said he did the crime is a “relevant fact”

Rule of finality in relation to collateral matters

Rule: Where Witness cross-examined on matter of their credibility (collateral fact) – answers must be taken as final and evidence cannot be called to rebut.

Purpose: trial should remain focussed on relevant facts (which infer/prove facts-in-issue) and not be sidetracked by proof/disproof of collateral facts.

The Tribunals

Tribunal of Fact

Decides whether the facts are proven to the required standard

Tribunal of Law

Decides what the law is and whether the law allows the calling of evidence to show the fact(s)

Key Principles

Relevance

Any item of proof (fact) which renders more or less probable the existence of a fact-in-issue

“logically probative or disprobative” of a fact-in-issue" – makes the existence of the fact-in-issue more or less likely.

Sufficiency of Relevance

Evidence (proving facts) must be sufficiently relevant (sufficiently logically probative) to a fact-in-issue in order to be admitted.

The evidence must support a reasonable inference of the existence/non-existence of a fact-in-issue

Inference of the existence/non-existence of a fact only “reasonable” if the evidence is sufficiently relevant (sufficiently probative)

Conditional Relevance

Some evidence may only be “relevant” (probative of existence of a fact-in-issue) if another fact is proved (evidence of it adduced)

Where that other fact is not proved (evidence of it excluded), Judge must direct Jury to ignore the conditionally relevant evidence.

Argument

Identifies:

• What the evidence is relevant to – what fact it supports the inference of/makes more likely

• How it is relevant – directly/conditionally – how it is probative of the fact-in-issue

• That it is capable of proving a fact-in-issue – that, from the evidence/combination of evidence, the fact may be proved (shown to be true)

Admissibility

Determines what evidence the court will hear to prove the fact-in-issue

Matter of law for the judge

In order to “prove” a fact – the evidence must be relevant and have weight

Weight

Extent to which the evidence proves/disproves the fact-in-issue (ie. how convincing it is/how much more likely it makes the existence/non-existence of the fact)

Cogency and/or probative value.

Arguments – address how much weight should be attached to the evidence and why.

Evidence may not be admitted/admissible due to lack of weight.

Best Evidence Principle

Quality of evidence goes only to weight (NOT admissiblity)

Presumptions

3 types of presumption:

1. rebuttable presumption of law

2. irrebuttable presumption of law

3. presumptions of fact

Rebuttable Presumption of Law

On proof of a "basic fact", another fact must be presumed ("the presumed fact"), in the absence of sufficient evidence to the contrary.

Party relying on presumption has burden of proving the basic fact.

Once the basic fact is proven, opposition has burden of disproving the presumed fact

• if pros, have legal burden to disprove BRD

• if defence, only have evidential burden to...