Manchester Law School

Manchester Law School


§ Will have 6 lectures on the entire syllabus§ Assessment in May 2021 is by 2 hour closed book written

examination

Teaching and Assessment


§ ‘Evidence is information by which facts tend to be proved The law of evidence is that body of law and discretion regulating the means by which facts may be proved’ Adrian Keane and Paul McKeown, The modern law of evidence (Twelfth edn, Oxford University Press 2018)

Fundamentals of Evidence


§ Proof− Proof is achieved by a combination of evidence and

arguments



− There is an implicit standard/level of proof that must be reached in order to convince another person

Standards of Proof


− Some facts and arguments are more persuasive than others. It will all depend on how relevant the evidence is and how reliable it is

− A tribunal is required to objectively determine whether something has been proved or not


§ Facts in issue



§ Relevance – DPP v Kilbourne [1973] “Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. It is sufficient to say….that relevant (ie logically probative or disprobative) evidence is evidence which makes the matter….more or less probable.” (Per Lord Simon)



§ Logical” or “legal” relevance−Blastland [1986]

§ Admissibility§ “Weight” of the evidence§ Collateral evidence§ Direct vs Circumstantial evidence



§ Forms of evidence− Oral testimony (includes written statements)− Documentary evidence− Real (or original) evidence

§ Tribunals of fact and law − Who decides on admissibility of evidence− Voir dire



§ Proof without evidence− Judicial notice – without enquiry/after enquiry− Formal admissions− s65B Criminal Procedure Ordinance− S65C Criminal Procedure Ordinance



§ Legal (or persuasive) burden – see Woolmington v DPP [1935] AC 462

§ Reverse legal burden− Common law (eg insanity)− Onus on the defence to establish on balance of probabilities− Express statutory reverse burden (e.g. Homicide Ordinance

Cap 339)− Implied statutory reverse burden (eg s.94A CPO Negative

averments and Lee Kwong Kut [1993]; HKSAR v Hung Chan Wa [2006]; HKSAR v Lam Kwong Wai [2005])

Burden of Proof in Criminal Cases


§ If an ordinance contains an express reverse legal burden that is not proportionate and it cannot be interpreted as an evidential burden, then the court must hold the ordinance to be inconsistent with the Bill of Rights and Basic law and quash the conviction- HKSAR v Lam Kwong Wai

§ Evidential burden normally borne by D when wish to raise a defence


§ Where P bears legal burden – “beyond reasonable doubt” Miller v Minister of Pensions [1947]; Stephens [2002]

§ Where D bears the legal burden – “on the balance of probabilities” Carr-Briant [1943]

§ Where P or D bears the evidential burden – a “prima facie” case, but means slightly different things according to whether P or D has the burden

§ Practical exercise 4

Standard of Proof in Criminal Cases


§ He who asserts must prove” - Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd[1942]

§ BUT not always obvious§ In contract disputes the contract itself may specify who

bears the burden of proof§ Standard is “on the balance of probabilities”

Burden and Standard of Proof in Civil Cases


§ Once the party has established the primary facts the court will then presume a further fact

§ Irrebutable presumptions of law§ Rebutable presumptions of law

− Persuasive and evidential presumptions− Presumption of death – Chard v Chard [1955]− Presumption of survival - s.11(1) Conveyancing and Property

Ordinance

Presumptions


§ Presumptions of fact – tribunal of fact may make the inference of the presumed fact− Eg. presumption of the continuance of life

§ Res ipsa loquitur – for negligence claims1. something (object or location) is under the control of the

defendant;2. that thing caused an accident; and3. the accident would not have happened if the thing had

been properly managed

§ Practical Exercise 5

Presumptions


§ Bad news – cannot “question spot” need to know everything from lectures 1, 2 and 6.

§ Good news− Will not test case names in MCQ test (apart from to be able

to recognise key directions – eg Turnbull)− One answer out of the four must be correct− No marks deducted for an incorrect answer

§ If you do not know the correct answer then work out the wrong answers

Multiple Choice Questions


Mary is charged with possessing an offensive weapon, contrary to the Public Order Ordinance (Cap 245) s.33, which provides: “Any person who, without lawful authority or reasonable excuse, has with him in any public place any offensive weapon shall be guilty of an offence.”

Mary is alleged to have had a knife with her in a bar in Lan Kwai Fong. Her defence is that she had a reasonable excuse to be carrying a knife as she is a professional cook and was returning home from her restaurant, when she felt thirsty and stopped to have a drink.

Given the situation above which one of the following is correct?

A The Prosecution has the legal burden to prove all the elements of the offence and the Defendant can only ever bear the evidential burden in relation to a defence.

B The Prosecution has the legal burden to prove all the elements of the offence, but the Defendant has the legal burden to prove the defence of reasonable excuse.

C The Prosecution has the legal burden to disprove the defence of reasonable excuse and the standard of proof is “on the balance of probabilities”.

D The Defendant has the legal burden to prove the defence of reasonable excuse and need only show a prima facie case

Lecture 1 questions


Which one of the following definitions best describes a persuasive rebuttable presumption of law in a civil case?

A Once the preliminary facts have been proved the court must presume that a further fact is true. Evidence can then be adduced to disprove the presumed fact, and the required standard of proof to disprove the presumed fact is on the balance of probabilities.

B Once the preliminary facts have been proved the court must accept that the presumed fact is true. No evidence can be adduced to prove that the presumed fact is not true.

C Once the preliminary facts have been proved the court may presume that a further fact is true. To disprove the presumed fact the opposing party need only adduce a prima facie case that the presumption is incorrect.D Once the preliminary facts have been proved the court must presume that a further fact is true. To disprove the presumed fact the opposing party need only adduce a prima facie case that the presumption is incorrect.

Lecture 1 questions


Which one of the following statements about a piece of evidence is not true?

A The admissibility of a piece of evidence is a question of law for the tribunal of law.

B If a piece of evidence is relevant it must be admissible.

C The weight of a piece of evidence is a question of fact for the tribunal of fact.

D A piece of evidence will be relevant if it makes a fact in issue more or less probable.

Lecture 1 questions


Which of the following statements about judicial notice is INCORRECT?

A A judge may take judicial notice of a fact without enquiry if it is obvious to allreasonable people

B A judge may take judicial notice of a fact after enquiry by reference to written materials such as a dictionary or encyclopaedia

C At common law ordinances and subsidiary legislation are automatically deemed to be judicially noticed

D A judge cannot call oral evidence to help her determine whether she should take judicial notice of a fact

Lecture 1 questions


Sam Leung is suing William Siu for damages for personal injury and vehicular damage arising out of a road traffic accident.

Sam asserts that he was driving his car along Nathan Road. He states that he was correctly positioned on the road when William negligently drove his van across give way lines at a junction onto Nathan Road and into a collision with Sam’s car.

William denies liability for the accident and makes a counterclaim in respect of the damage to his van. William asserts that he had driven his van onto Nathan Road when suddenly and without warning Sam’s car changed lanes and drove into collision with him.

Lecture 1 questions


Please consider the following statements regarding the burden and standard of proof in the case:

[i] Sam bears the legal burden of proving the claim on the balance of probabilities

[ii] Sam bears the legal burden of proving the claim beyond reasonable doubt

[iii] William bears the legal burden of proving the counterclaim beyond reasonable doubt

[iv] William bears the legal burden of proving the counterclaim on the balance of probabilities

Which of the above statements are CORRECT?

A [i] & [iii]

B [ii] & [iii]

C [i] & [iv]

D [ii] & [iv]

Lecture 1 questions

Manchester Law School

Documents