Law of Evidence

Questions: 1.Jacks barrister would like to the bar owners testimony admitted as evidence. What is the first question that must be asked in determining whether the bar owners testimony can be admitted: a. Is the evidence hearsay? b. Is the evidence relevant? c. Is the evidence probative? d. Is the evidence opinion evidence?2.Based on your answer above, do you think the evidence of the bar owner could be admitted under this rule? 3.Would the hearsay rule apply and why? If so could any exceptions to the hearsay rule be applied?4.The Prosecution discovers that Jack attempted to drown his step son 9 years ago. The prosecution seeks to have this evidence admitted to prove that Jack has a tendency to drown people. What section will be considered and what are the threshold issues that must be met under this section?5.Assuming that the threshold issues of s97 are met, what would be a relevant consideration in determining whether the evidence has significant probative value under s97? Answers: 1. As per the rule the testimony of the bar owner can be hearsay as it is not an clear evidence because the bar owner did not knew the accused Jack Thomson personally and he did not see Jack Thomson clearly on that particular night he just heard from an unidentified man that there was Jack Thomson at his bar on that night at 2:45A.M. He could not see the man. Therefore in this context the testimony of the bar owner cannot be evidence in this case[1]. The bar owner is not sure in this case and he was depended upon the statement of another identified man, who told about Jack Thompson. The testimony of the bar owner is relevant to the case as Jane the wife of Jack Thomson was murdered on that particular night in around 3 A.M. Thus, if it is proved that Jack was there on that day at that particular time then the main accused jack Thompson would be proved innocent in this case. Therefore, the testimony of the is a hearsay. As per Section 59(1) it is hearsay. 2. According to the rule the testimony of the bar owner can be admitted. As per the Section 59(1) the bar owners testimony is considered as hearsay in this case as the bar owner did not saw Jack Thomson on that night and he did even knew Jack Thomson before the incident; besides this, he only rely on a voice of an unidentified person, because the bar owner did not see the person, who told that there was Jack Thomson. The person told about Jack Thomson presence at the bar on that day at 2:45 A.M which was nearly the time of murder of Jacks wife Jane[2]. Thus, the law cannot ignore the evidence and the evidence should be admitted under the Section 59(1). 3. Here in this particular case the hearsay rule will be applied as the bar owners testimony cannot be taken as proof of the case as he did not see Jack Thomson on that night and even he did not see the man told about the presence of Jack Thomson at that particular bar on that specific night at 2:45 A.M so it cannot be taken as a concrete proof in this case. Moreover, according to the rule in Section 59 (1) it is a case of hearsay. The hearsay rule can be applied to the case as the bar owner did not see Jack Thomson on that particular night, he just heard about his presence at that bar[3].Therefore, it cannot be taken as evidence and it can be hearsay. 4. As the prosecution discovered that Jack had attempted to drown his step son 9 years ago, thus it can be taken as an evidence as Jack has the tendency to drawn people and his wife was murdered by drowning in the pool of their house. According to the Section 97 an individual shows a tendency to act in a certain way. Here, in this case study it is stated that Jack had tried to drawn his step son before 9 years so, there is a possibility that he can do the same with his wife. Thus as per the rule of Section 97 the tendency of Jack to drawn people must be taken as an evidence in this case, where his wife was found dead at the pool side of their house[4]. Moreover, she was forcibly drawn in the pond and it was the main reason for her death so in this case it is evidence that Jack has murdered his wife. Moreover as per the Section 97, Jack was suspected in this case. 5. In case of the threshold issues of the murder case, where Jack Thomson is accused for the murder of his wife Jane as his wife was murdered by forcibly drawing in the pool of their house and Jack has the previous history of drowning people as he was attempting to murder his step son in the same way, thus he will be accused in this murder case. However, at the same time Jack told that he was not present at his home on that particular night but he was at the bar near his house and for his support the bar owner said that he heard somebody to told that there was Jack Thomson at his bar on that particular night at 2:45 A.M. when it is assumed that Jacks wife Jane was murdered at around 3:00 A.M. Here, the statement from the neighbor of Jack also can be considered, she told that she saw Jacks car on that particular night at 2:35 A.M. Therefore, as per the Evidence Act 2008 Sec. 97 threshold issue has been met and the evidences have significant probative value under Section 97. References Keane, Adrian,The Modern Law Of Evidence(Oxford University Press, 2006) Oeste, Gordon K,Legitimacy, Illegitimacy, And The Right To Rule(T T Clark International, 2011) Paciocco, David M and Lee Stuesser,The Law Of Evidence(Irwin Law, 2008) The Law Commission (Law Com. No. 216). The Hearsay Rule In Civil Proceedings(Proquest LLC, 2007)