1.6 What Is the Evidence? 1

1.6 What is the evidence?1

1. I said a moment ago that the plaintiff carries the burden of proof of necessary matters after consideration of all the evidence. So what is the evidence?

2. In this case, it was largely what the witnesses said under [oath/affirmation] in the witness box [and by video link]. It also consists of:

(a) [ reports read into evidence /

(b) exhibits tendered into evidence /

(d) some agreed facts.]

3. So far as the evidence was given from the witness box [or by video link], it consisted of what the witness said in evidence in chief, cross-examination and re-examination.

4. When I refer to ‘what the witness said’, I refer to the witness’s answers, not counsel’s questions. It is important to keep this in mind. It does not matter how strongly a question was put to a witness, how much detail was loaded into it; it is the answer which was the evidence. [Give an example]. This does not mean, of course, that you must accept the answer as being reliable.

5. As judges of the facts, it is for you to decide whether to accept or reject any evidence – although there is no reason not to rely upon admissions formally made by counsel, or facts agreed and announced to the court.2

6. No kind of evidence has a starting point of greater or lesser reliability than another. It would be wrong, for instance, for you to begin with the idea that a written exhibit is intrinsically more likely to be reliable than evidence given from the witness box; or, to take another example, that evidence given from the witness box is more likely to be reliable than evidence given by video link.

7. Several times now I have referred to you considering all the evidence. What I mean is this: when you come to decide an issue of fact, you should look at the evidence about that issue overall. More than one witness may have given evidence from the witness box about the

1 Note: This charge is a guide only, and may require modification to fit the facts of an individual case 2 By s 191 of the Evidence Act, there is very limited opportunity to adduce evidence controverting an agreed fact as there defined. This may be an additional reason for telling a jury that it should act upon agreed facts.

1 issue. There may be some documentary evidence – an exhibit or a report. You decide, having reviewed all the evidence on the issue, what to accept concerning the issue.

8. It sometimes happens that evidence which a jury considers was helpful to one party emerged in the evidence of a witness called by the other side. That is no reason not to accept it. It is permissible for you to act on the evidence of a witness to support one party, even though the witness was called by the opposing party.

9. Often enough, the evidence of witnesses called by one party upon a particular issue will not exactly coincide. You might think that it would be a little surprising if it did. For example, we all know that in everyday life the recollections of honest observers differ. The mere fact that the evidence of witnesses called by one of the parties upon a particular issue does not perfectly coincide does not mean that you may not decide to broadly accept the evidence. Nor does it mean that you might not decide to give particular [importance/weight] to the evidence of a particular witness. In each case, you would decide what to accept having regard to your assessment of the probabilities of the situation, informed by your commonsense and experience of life.

10. You are concerned with the reliability of evidence, not the honesty of a witness. Although honesty and reliability may well go together, it is common experience, as I mentioned a moment ago, that the recollections of honest observers differ. You might readily accept that a witness was honestly doing their best to give a reliable account of events, and yet conclude that the witness’s account was unreliable. And you might conclude that another witness was not notable for their honesty, and yet that a particular part of his or her evidence was reliable.

11. You may decide, then, to accept all of what a witness said, or reject all of it, or to accept the witness’s evidence in part and reject it in part. It is permissible for you to be satisfied of the reliability of part of a witness’s evidence even though you are not satisfied of the reliability of some other part of their evidence.

12. In deciding what to accept, or reject, you are entitled to take into account what you observed of a witness’s demeanour, and the manner in which the witness gave their evidence. But your commonsense would tell you that it must be a considerable ordeal for many people to get into the witness box, give evidence and face a skilled cross-examiner. It would be sensible to be cautious about attaching too much importance to a witness’s demeanour, or the manner of the witness in giving evidence, when deciding whether to accept or reject his evidence.

13. It is for you to decide what use to make of evidence which you do accept in answering the questions requiring your determination.

2 14. In assessing the evidence and making findings of fact, it is appropriate for you, if you choose to do so, to take into account whether particular evidence is consistent with the probable state of affairs as you find it to be given the facts which have been established to your satisfaction and your experience of life.

15. You will reach your verdict on the evidence and only on the evidence. That means of course that you should not go searching outside this court for answers or further information or satisfying your curiosity about matters. It would lead to a result which would be flawed. So I cannot emphasise enough the importance of acting only on the evidence being the evidence you have heard and the evidence being the exhibits that you will have in your jury room. The law requires that your verdict be based solely on the evidence.

Last updated: 14 April 2014