Basic of Evidence

The court must reach it decision based upon the evidence presented before it by the disputing parties, on the balance of probabilities in civil matters and beyond reasonable doubt in criminal matters.

Failure to make the determination from the evidence is automatic right for appeal!

Summed up by Lord Diplock in Att-Gen v. Times Newspapers Ltd. [1974] [1] :

 "The due administration of justice requires... that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law...".

In the decision of a Divisional Court in Bracegirdle v Oxley and Cobley [1947] KB 349 Lord Bingham added:

"It is obviously perverse and an error of law to make a finding of fact for which there is no evidential foundation. It is also perverse to say that black is white, which is essentially what the justices did in Bracegirdle v Oxley and Cobley. But it is not perverse, even if it may be mistaken, to prefer the evidence of A to that of B where they are in conflict. That gives rise, in the absence of special and unusual circumstances ... to no error of law challengeable by case stated in the High Court. It gives rise to an error of fact properly to be pursued in the Crown Court."

ALL PRESUMPTIONS AND ASSUMPTIONS ARE REBUTTABLE BY EVIDENCE!

  • Contr veritatem lex numquam aliquid permittit. - The law never suffers anything contrary to truth.
  • Ex facto jus oritur. - Law arises out of fact; that is, its application must be to facts.
  • Incerta pro nullius habentur. - Things uncertain are held for nothing.

Hearsay evidence is precisely what it says - not first hand witness testimony which is available for cross examination, and hence is inadmissible!

To avoid wasting the courts time Judicial Notice may be used when:

  • a 'fact' is not reasonably disputable, and it is easily verifiable from authoritative sources, or
  • is commonly known through observation or experience by any person, that it cannot reasonably be doubted, and
  • is requested by one party to the court, or is by the application of knowledge within the court records, and
  • has the right of rebuttal by the other party (beyond reasonable doubt in criminal cases).

[1] https://learninglink.oup.com/static/5c0e79ef50eddf00160f35ad/casebook_187.htm