manchester law school
TRANSCRIPT
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
Manchester Law School
§ âEvidence 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 provedâ Adrian Keane and Paul McKeown, The modern law of evidence (Twelfth edn, Oxford University Press 2018)
Fundamentals of Evidence
Manchester Law School
§ Proofâ Proof is achieved by a combination of evidence and
arguments
Fundamentals of Evidence
Manchester Law School
â There is an implicit standard/level of proof that must be reached in order to convince another person
Standards of Proof
Manchester Law School
â Some facts and arguments are more persuasive than others. It will all depend on how relevant the evidence is and how reliable it is
â A tribunal is required to objectively determine whether something has been proved or not
Manchester Law School
§ Relevance â DPP v Kilbourne [1973] âEvidence is relevant if it is logically probative or disprobative of some matter which requires proof. It is sufficient to sayâŠ.that relevant (ie logically probative or disprobative) evidence is evidence which makes the matterâŠ.more or less probable.â (Per Lord Simon)
Fundamentals of Evidence
Manchester Law School
§ Logicalâ or âlegalâ relevanceâBlastland [1986]
§ Admissibility§ âWeightâ of the evidence§ Collateral evidence§ Direct vs Circumstantial evidence
Fundamentals of Evidence
Manchester Law School
§ Forms of evidenceâ Oral testimony (includes written statements)â Documentary evidenceâ Real (or original) evidence
§ Tribunals of fact and law â Who decides on admissibility of evidenceâ Voir dire
Fundamentals of Evidence
Manchester Law School
§ Proof without evidenceâ Judicial notice â without enquiry/after enquiryâ Formal admissionsâ s65B Criminal Procedure Ordinanceâ S65C Criminal Procedure Ordinance
Fundamentals of Evidence
Manchester Law School
§ Legal (or persuasive) burden â see Woolmington v DPP [1935] AC 462
§ Reverse legal burdenâ Common law (eg insanity)â Onus on the defence to establish on balance of probabilitiesâ Express statutory reverse burden (e.g. Homicide Ordinance
Cap 339)â 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
Manchester Law School
§ 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
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§ Where P bears legal burden â âbeyond reasonable doubtâ Miller v Minister of Pensions [1947]; Stephens [2002]
§ Where D bears the legal burden â âon the balance of probabilitiesâ Carr-Briant [1943]
§ Where P or D bears the evidential burden â a âprima facieâ case, but means slightly different things according to whether P or D has the burden
§ Practical exercise 4
Standard of Proof in Criminal Cases
Manchester Law School
§ He who asserts must proveâ - 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 âon the balance of probabilitiesâ
Burden and Standard of Proof in Civil Cases
Manchester Law School
§ Once the party has established the primary facts the court will then presume a further fact
§ Irrebutable presumptions of law§ Rebutable presumptions of law
â Persuasive and evidential presumptionsâ Presumption of death â Chard v Chard [1955]â Presumption of survival - s.11(1) Conveyancing and Property
Ordinance
Presumptions
Manchester Law School
§ Presumptions of fact â tribunal of fact may make the inference of the presumed factâ Eg. presumption of the continuance of life
§ Res ipsa loquitur â 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
Manchester Law School
§ Bad news â cannot âquestion spotâ need to know everything from lectures 1, 2 and 6.
§ Good newsâ Will not test case names in MCQ test (apart from to be able
to recognise key directions â eg Turnbull)â One answer out of the four must be correctâ No marks deducted for an incorrect answer
§ If you do not know the correct answer then work out the wrong answers
Multiple Choice Questions
Manchester Law School
Mary is charged with possessing an offensive weapon, contrary to the Public Order Ordinance (Cap 245) s.33, which provides: âAny person who, without lawful authority or reasonable excuse, has with him in any public place any offensive weapon shall be guilty of an offence.â
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 âon the balance of probabilitiesâ.
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
Manchester Law School
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
Manchester Law School
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
Manchester Law School
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
Manchester Law School
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 Samâs 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 Samâs car changed lanes and drove into collision with him.
Lecture 1 questions
Manchester Law School
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