It is the judge’s duty to hear and establish the facts of the case, as well as to decide, upon consideration of those facts, whether there will be any remedy. Consideration of those facts will be supported by evidence to increase credibility. The rules on evidence must be distinguished: some evidence is admissible in court and some is inadmissible. If the evidence is inadmissible in court, you will not be allowed to rely on it in your proceedings. The evidence which is admissible can have different weight depending on the type of evidence.
Generally evidence is admissible in court if it is relevant to the facts of the case and if it is not excluded by legislation or rule of law. Sometimes exclusionary rules apply which make the evidence inadmissible due to public policy or some specified conditions or safeguards.
Categories of evidence
If a person who is not an expert wants to give evidence on a matter and that evidence is merely an opinion, the court has to be satisfied that the person is giving evidence of what they perceived (eg, opinion evidence on identity, age, affection between two people).
Evidence of character and previous convictions
Some individuals may have a bad character or have previous criminal convictions. These will be admissible in civil proceedings; this may however give rise to presumption that they committed that offence.
Evidence which is considered privileged
No matter how relevant it is to the case, if evidence is privileged (eg, communications between a client and their lawyer or evidence which the State wants to keep secret in the public interest) it will not be allowed to be disclosed and this will render it to be inadmissible.
Hearsay evidence is a statement made by someone other than the person giving oral evidence in the case but which is presented as evidence of the matters stated. In other words it is second hand evidence, eg, something the witness says that somebody else said. Hearsay evidence can be presented by a witness giving oral evidence or contained in a witness statement of a person who is not being called to give oral evidence.
Hearsay evidence is admissible in civil cases, but if a party wants to rely on hearsay evidence it should notify the other party by serving a notice on it and give particulars relating to the evidence. The notice must outline the evidence sought to be relied on and state that the witness proposes to rely on it as evidence at trial. It should also explain why the person who is said to have made the statement will not be called as a witness. If the hearsay evidence is to be in a document, a copy must be supplied to any party who requests it.
If hearsay evidence is to be presented, the court can allow the other party to call the maker of the statement to be cross-examined on the contents of the statement. The other party can also call evidence to attack the credibility of the person who made the statement.
In assessing the weight of the hearsay evidence, the court will consider a variety of factors such as whether there was any motive to conceal the facts, whether it was reasonable for the party to provide witness statement instead of oral evidence, the circumstances when the statement was made, etc.
The court’s power
The court has the power to control all evidence, limit cross-examination, etc. This power is contained in the court’s case management powers. According to Civil Procedure Rules Pt 32 r 1(2), the court also has the power to refuse evidence which is admissible. It is important that the parties follow the courts directions.
The general rule is that the parties must exchange witness statements on time and before the trial or otherwise the witness will not be able to attend the trial. The parties should obtain extension of time if they are unable to serve the witness statements on time. If it is known that the witness is unreliable and may not come to the trial, a witness summons should be served on them. This should be served on the witness at least seven days before the trial.
Witnesses at trial
Witnesses of fact
Witnesses of fact are the witnesses who have the knowledge of certain facts or events which took place at some place and at some point in time and these witnesses were able to see, hear, and identify those facts and events being done.
Expert evidence is evidence of an expert’s opinion in a matter relating to their expertise. It is used to aid the court when the case involves matters on which it does not have the requried technical or specialist knowledge. Expert evidence must be impartial and the expert should always be able to distinguish the facts which fall and those which do not fall in their expertise. If they had insufficient resources to research the matter, or later change their mind about the evidence given, they should tell the court. An expert will submit their evidence to the court in the form of a report together with relevant surveys or photographs. The other party can then ask the questions about the report.