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 so as to increase credibility. Evidence is a proof of facts, it is a way how to prove or disprove them. The rules on evidence must be distinguished some evidence is admissible in court and some evidence 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. Evidence includes witness evidence and evidence in the proceedings.
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 be inadmissible due to public policy or some specified conditions or safeguards. Evidence will not be admissible if it is privileged.
Categories of evidence
If a person who is not an expert in a matter wants to give evidence in relation to the same and that evidence is merely an opinion on that matter the court has to be satisfied that that person is giving evidence of what he perceived. (e.g. 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 he committed that offence.
Evidence which is considered privileged
Notwithstanding its relevance, if the evidence is privileged it will not be allowed to be disclosed and this will render it to be inadmissible.
Hearsay can be an oral or written statement in relation to a certain matter made by a witness at some occasion other than at court and this statement is now being claimed at the court in order to prove the truth of that certain matter. This can either be first hand or multiple. If a witness statement is filed in court and the witness does not come to the court to give his oral evidence, his witness statement will be considered to be first hand hearsay. If the facts of the witness statement were told to some other person that other second person’s oral evidence at court can be considered as first hand hearsay too (as he heard the first person to say it). If that second person does not turn up in the court to give his oral evidence, his witness statement will be considered to be second hand hearsay and therefore it will loose credibility. As long as the person making hearsay was competent to make it, hearsay evidence will be admissible.
Procedure at trial in relation to evidence documentation
In accordance with the statute, if the party wants to rely on hearsay evidence it should notify the other party by serving a notice on it. The party who receives the notice has several options. He can request particulars, call for cross examination, or attack credibility. By particulars of hearsay it is meant that a party can request detailed information to the same. Within 14 days of receiving the notice, the receiving party can apply to the court for the witness whose evidence is considered hearsay to be cross-examined. If the party who received the notice has an intention to attack the witnesses credibility it must notify the other party, it has 14 days to do so (since the notice was served). The receiving party may decide to challenge the weight of the evidence at the trial. The court will look at all sorts of different circumstances in order to assess the weight of the evidence. E.g. The court will consider 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
It is essential to remember that 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 CPR part 32 rule 1(2) the court has also have the power to refuse evidence which is admissible. It is important that the parties follow the courts directions.
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 a bit unreliable and may not come to the trial, a witness summons should be served on him. This should be served on the witness at least 7 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 an evidence of an expert’s opinion in a matter relating to his expertise. It must be impartial and he should always be able to distinguish the facts which fall and those which do not fall in his expertise. If he had insufficient resources in order to research the matter he must let the court know about it. If an expert changes his mind at a later occasion he should also let the court know about it. An expert will submit his evidence in the form of a report together with other important surveys or photographs to the court for exchange with the other party. The other party can then ask the questions about the report. They can only be asked once.