The Qanun-e-Shahadat Order 1984 repealed Evidence Act of 1872

The Qanun-e-Shahadat Order 1984 repealed Evidence Act of 1872

• The Qanun-e-Shahadat Order 1984 repealed Evidence Act of 1872

• Both are subjectively the same but objectively they are poles apart.

• The Object of Qanun-e-Shahadat Order is evident from its preamble which has never been the object of the repealed Evidence Act

With reference to the preamble, Intention of object of introduction this Order, as stated therein, is to bring the all laws of evidence in conformity with the injection of Islam as laid down in the Holy Quran and Sunnah

• With reference to the preamble, Intention of object of introduction this Order, as stated therein, is to bring the all laws of evidence in conformity with the injection of Islam as laid down in the Holy Quran and Sunnah

It is an admitted position that all Articles or the Order 1984 are substantially and subjectively mere reproduction of all sections of the repealed Act with exceptions of Article 3, Article 4 to 6(with reference to Hudood), addition of Article 44 and addition of a proviso to Article 42 if compared with corresponding sections of the repealed Act

• It is an admitted position that all Articles or the Order 1984 are substantially and subjectively mere reproduction of all sections of the repealed Act with exceptions of Article 3, Article 4 to 6(with reference to Hudood), addition of Article 44 and addition of a proviso to Article 42 if compared with corresponding sections of the repealed Act

However, principles of Islamic Law of evidence so long as they are not codified or adopted by Qanun-e-Shahadat, 1984 are not per se applicable Order. It apply to all judicial and quasi judicial proceedings.

• However, principles of Islamic Law of evidence so long as they are not codified or adopted by Qanun-e-Shahadat, 1984 are not per se applicable Order. It apply to all judicial and quasi judicial proceedings.

Evidence is information used in court to decide on the probability of an alleged fact.

• Evidence is information used in court to decide on the probability of an alleged fact.

• Facts open to proof are:

• Facts in issue
• Relevant facts
• Collateral facts

Identifiable from the pleadings.

• Identifiable from the pleadings.

• Pleadings set out allegations, admissions and denials and thus define facts in issue

• A fact formally admitted is no longer a fact in issue

• Admitted in pleadings, interrogatories etc

Facts from which it is possible to infer the existence or non-existence of a fact which is in issue.

• Facts from which it is possible to infer the existence or non-existence of a fact which is in issue.

• This is called circumstantial evidence.

Affects the credibility of a witness.

• Affects the credibility of a witness.

• Goes to weight of evidence

• Affects competence of witness

• Preliminary facts which are proved as a condition precedent to the admissibility of certain kinds of evidence.

Testimony

• Testimony

• evidence made orally

• Direct testimony

• Statements of a fact of which witness has first hand knowledge

• Hearsay

• Any out of court statement offered as evidence of the truth of its contents

Original evidence

• Original evidence

• Evidence of an out of court statement tendered for any relevant purpose other than that of proving the truth of the facts contained in it.

• Real evidence

• A material object produced for inspection

• Documentary evidence

• Produced as real or original evidence, or hearsay

Primary evidence

• Primary evidence

• Evidence of the best kind
• e.g. original documents

• Secondary evidence

• Evidence of inferior kind
• e.g. photostat copies

• Circumstantial evidence

• evidence of facts relevant to the existence or non-existence of a fact in issue

Something (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact.

• Something (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact.

Evidence tending to establish a criminal defendant’s innocence.

• Evidence tending to establish a criminal defendant’s innocence.

Evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.

• Evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.

Testimony given by a witness who relates not what he or she knows, but what others have said. Therefore it is dependent on the credibility of someone other than the witness. (An out of court statement offered for the truth of the matter being asserted.)

• Testimony given by a witness who relates not what he or she knows, but what others have said. Therefore it is dependent on the credibility of someone other than the witness. (An out of court statement offered for the truth of the matter being asserted.)

Evidence which is used to undermine (discredit) a witness’s credibility.

• Evidence which is used to undermine (discredit) a witness’s credibility.

Evidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.

• Evidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.

A party’s duty to prove a disputed assertion or charge.

• A party’s duty to prove a disputed assertion or charge.

• Beyond a Reasonable Doubt

• Clear and Convincing

• Preponderance of the Evidence

Reasonable Doubt is the doubt that prevents one from being firmly convinced of a defendant’s guilt, or the belief that there is a real possibility that a defendant is not guilty.

• Reasonable Doubt is the doubt that prevents one from being firmly convinced of a defendant’s guilt, or the belief that there is a real possibility that a defendant is not guilty.

Evidence indicating that the thing to be proved is highly probable or reasonably certain.

• Evidence indicating that the thing to be proved is highly probable or reasonably certain.

The greater weight of the evidence, not necessarily established by the number of witnesses testifying, but by evidence that has the most convincing force.

• The greater weight of the evidence, not necessarily established by the number of witnesses testifying, but by evidence that has the most convincing force.

The party bearing the legal burden usually bears the evidential burden

• The party bearing the legal burden usually bears the evidential burden

• Distinguish from prima facie

• Before evidence acceptable judge must be satisfied by prima facie evidence.

E.g. in order to admit tape recordings judge must satisfy himself that a prima facie case of originality has been made out be evidence which defines and describes the provenance and history of the recordings up to the moment they appear in court. (R v. Robson (1972))

• E.g. in order to admit tape recordings judge must satisfy himself that a prima facie case of originality has been made out be evidence which defines and describes the provenance and history of the recordings up to the moment they appear in court. (R v. Robson (1972))

• Photographs and videos need only show proof that they refer to event in question

Legal professional privilege

• Legal professional privilege

• Certain communications between lawyer and client cannot be elicited from client

• Certain communications relating to pending or contemplated litigation between lawyer and client or third parties cannot be elicited from client

• Relates mainly to communications for giving legal advice and pending legal action

Negotiations for settlement of an action are made without prejudice and therefore privileged

• Negotiations for settlement of an action are made without prejudice and therefore privileged

• Normally includes ‘without prejudice’ on documentation but does not have to, test is whether it is part of negotiation.

• Even if marked without prejudice and correspondence not part of settlement then statement of no use.

Those who allege must prove

• Those who allege must prove

• Statute may set out who has to prove what. Some acts shift onus of proof.

• Wording of contract would be important.

• In negative assertions those who allege still must prove.

Policy decisions may be made in difficult cases - onus placed on person who would find it less difficult to prove.

• Policy decisions may be made in difficult cases - onus placed on person who would find it less difficult to prove.

• Must prove on balance of probabilities, the evidence must show that the fact was more probable than not (Miller v. Minister of Pensions)

EVIDENTIARY ISSUES ARISE WHEN ONE SIDE WANTS TO ADMIT THE EVIDENCE AND THE OTHER WANTS TO EXCLUDE IT

• EVIDENTIARY ISSUES ARISE WHEN ONE SIDE WANTS TO ADMIT THE EVIDENCE AND THE OTHER WANTS TO EXCLUDE IT

• HOW THE LAWYER PREPARE ON CONTESTED ISSUES OFTEN DEPENDS UPON THE ANSWER TO 3 KEY QUESTIONS

What is the Evidence being offered to prove?

• What is the Evidence being offered to prove?

• Who is offering it?

• What form is it in?

AFTER ANSWERING 3 KEY QUESTIONS – LAWYER MUST DO THE BARPH TEST

• AFTER ANSWERING 3 KEY QUESTIONS – LAWYER MUST DO THE BARPH TEST

• THAT’S RIGHT – WHEN YOU THINK EVIDENCE – THINK BARPH

Best Evidence –

• Best Evidence –

• Authentication –

• Relevance* –

• Privilege – State law

• Hearsay –

• *encompasses rules which may exclude relevant evidence for policy reasons

Which party has to prove what?

• Which party has to prove what?

• Legal burden

• requirement to prove a fact in issue

• Evidential burden

• the requirement to obtain sufficient evidence to justify a favourable finding of a fact in issue

Those who allege must prove

• Those who allege must prove

• Statute may set out who has to prove what. Some acts shift onus of proof.

• Wording of contract would be important.

• In negative assertions those who allege still must prove.

Policy decisions may be made in difficult cases - onus placed on person who would find it less difficult to prove.

• Policy decisions may be made in difficult cases - onus placed on person who would find it less difficult to prove.

• Must prove on balance of probabilities, the evidence must show that the fact was more probable than not (Miller v. Minister of Pensions)

In order to succeed in an action you need to prove or disprove facts logically.

• In order to succeed in an action you need to prove or disprove facts logically.

• For example it has to be proved that a third party driver was negligent.

• Diagrams can assist with this approach

• Start with event to be proved and work downwards

• Check that all points can be proved on balance

Legalese for opening arguments made in court.

• Legalese for opening arguments made in court.

• Name of a chocolate factory in Pennsylvania.

• Holding of a belief that goes against generally accepted standards.

• The type of evidence that is often excluded, unless it falls within an accepted category.

• d. The type of evidence that is often excluded, unless it falls within an accepted category.

A question that suggests its answer.

• A question that suggests its answer.

• The first of a series of questions.

• A dispute of dancing partners.

• An important public issue.

A question that suggests its answer.

• A question that suggests its answer.

Inspection of a religious relic.

• Inspection of a religious relic.

• Direct examination of a witness.

• Questioning of an adverse witness.

• Questioning of a party’s own witness.

• c. Questioning of an adverse witness.

Testimony of a witness who directly saw an event take place.

• Testimony of a witness who directly saw an event take place.

• Testimony about the good character of a defendant.

• Testimony of a witness who has substantial knowledge and experience in a particular field.

• Testimony given by a witness who has rehearsed so much that he or she sounds like an expert.

• c. Testimony of a witness who has substantial knowledge and experience in a particular field.