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FACT
The definition of FACT given by LexisNexis Concise Australian Legal Dictionary is as follows:
Fact by definition is 'any act, occurrence, and other matter, other than a question of law, the existence of which is relevant to an issue at trial. Facts are required to make out elements of an offense or a claim in a case and are established by the parties abducting evidence. With the decline of the jury trail, the judge is more frequently required to determine both questions of law and fact.
The basic element of fact is act, occurrence or other matter. Now let’s have a look how act, occurrence or other matter are formed and expressed.
Now let me explain how the act, occurrence or other matter is formed.
First the information of the object, through our sensors, such as eyes and ears, forms a sensory information, which may include visual information and auditory information.
This information will be filtered through the system comprises of knowledge and experience and projected out as memory.
Then the memory will be retrieved and expressed in a language, which forms 'any act, occurrence, and other matter’.
As we can see that every step in this process, the information might be adjusted, might be modified, or even reconstructed.
If at each of these steps, we lose 10% of the original information, we will only have 65% of the original information. I believe this is one of the major reason why ‘degree of certainty’ is used. Because we can’t guarantee 100%, we possibly can’t guarantee 90%. We only can take the act, occurrence and other matter over a balance of probability.
Rule of evidence applying in the courts
There are three major rules suggested:
• Witnesses should generally only give evidence of what they themselves have witnessed; their testimony should not contain ‘hearsay’.
• Evidence should, as far as is possible, relate what the witness has observed, and be free of opinion and judgement.
• In criminal trials, other allegations against the defendant and prior convictions will generally be excluded.
I would like, here, to elaborate a bit more on the second point, which is evidence should relate what the witness has observed, and be free of opinion and judgement.
The difference between fact and opinion is not always clear. I would like to use the following case to demonstrate how difficult the situation can be.
The example is an extract from La Trobe Capital & Mortgage Corporation Limited v Hay Property Consultants Pty Ltd [2011] FCAFC 4.
In short, A lend 2.4 million dollars to B using B’s property as security, based on C’s advice that B’s property valued at 4 million dollars. When B defaulted on the loan, the property sold at 2 million dollars. A sued C for damage under two heads:
1. Capital loss of 0.4 million dollars
2. Income loss-being the difference between the interest that it would have received from an alternative borrower on similar terms and the interest in actually received from B.
During the proceedings, Mr G, a senior manager of A, stated that A would have entered into an alternative loan on similar terms if it had no lent 2.4 millioin dollars o B.
The matter to be decided is that if Mr G’s statement is evidence of fact.
B quote S 76 of the Evidence Act 1995 (Cth), which states that ‘evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.’ B characterised Mr G’s “assertions’ as opinion.
A rebuffed quoting S 78 of the Evidence Act 1995 (Cth), ‘the opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.’
Making the matter more difficult is that the Evidence Act 1995 (Cth) does not have a definition of ‘opinion’.
The court’s final decision is that Mr G’s statement is evidence of fact.
The judge first said ‘ It has been observed that the distinction between evidence of fact and evidence of opinion is difficult to draw.’
He ruled that Mr G put forward two proposition that A
1. Had an opportunity (or opportunities) to make a loan (or loans) on similar terms to B’s loan
2. Would have taken one of those opportunities, had it not lent money to B.
Justice Finkelstein ruled that the first proposition was simply an unparticularised statement of fact. He relied on a line of Australian authority which suggests that evidence as to what a person would have done in a hypothetical circumstance is not an opinion for the purposes of s 76 of the Evidence Act.
http://psychology.about.com/od/cognitivepsychology/a/memory.htm
Concise Australian Legal Dictionary (LexisNexis, 4th ed, 2011)
Margaret Davies, Asking The Law Question (Thomson Lawbook Co 3rd ed, 2008)
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发表于 2014-2-7 21:26
