by

Jaran Pukditanakul

Comparative Law

of Civil Procedure and Evidence

1

6 Stages of Civil Procedure1. Exchange of Pleadings

1.1 Complaint of the Plaintiff

1.2 Answer of the Defendant

2. Pre-trial Stage

2.1 Identification of (1) disputed issues and (2) legal burden of proof

2.2 Discovery of Evidence

3. Main Trial Stage

3.1 Introduction or Adduction of Evidence to the Court

3.2 Admissibility of Evidence

3.3 Weight of Evidence

4. Determination and Judgment

(1) question of facts (2) question of law

5. Appeal and Further Appeal

6. Enforcement of Judgment

or Petition or Petitioner

or Response or Respondent

2

Law of EvidenceI. Objective and Interpretation:

1. To prove facts of the case

2. To eliminate unjustifiable expense and delay

3. To administer proceeding fairly

4. To promote development of evidence law and justice system

To the end that Truth may be ascertained and Proceedings justly determined.

[Federal Rules of Evidence (F.R.E.) rule 102]

III. Structure of Law of Evidence:

1. Preparation Stage before main trial

1.1 Civil Case ?

1.2 Criminal Case ?

2. Main Trial Stage

2.1 Admissibility of Evidence

2.2 Adduction of Evidence

2.3 Weight and Reliability of Evidence

II. Rationale of Law of Evidence:

1. Doctrine of Free Proof ? And its Exceptions ?

2. Principle of Free Appreciation of Evidence ? And its Guidance ? Warning

and Suggestion ?

Exclusionary Rules

Corroboration: a rule of practice

3

Purposes or Objectives and Interpretation

of Law of Evidence

1. To prove facts of the case

2. To eliminate unjustifiable expense and delay

3. To administer proceeding fairly

4. To promote development of evidence law and justice

system

To the end that Truth may be ascertained and

Proceedings justly determined.

[Federal Rules of Evidence (F.R.E.) rule 102]

4

1. Doctrine of Free Proof or Liberty of Proofgeneral principle used at the stage of admissibility of evidence

2. Free Appreciation of Evidence general principle used at the stage of assessing weight of evidence

In order to establish Facts of the Case consistent with The Truth

Rationale of Law of Evidence

Concept:

Constraints or Limitations of the Doctrine

Note: Cri.P.C. = The Code of Criminal Procedure

1. Expense and Delay

ex. Rule against Irrelevancy

2. Avoidance of Error ? Or Bias ?

ex. Evidence of the Accused’s Bad Record, Cri.P.C. sections 226/2 and 226/4

3. Procedural Fairnessex. บญัชีระบพุยานหลกัฐาน, Document ?

4. Other overriding values ?

ex. Illegally Obtained Evidence, Cri.P.C section 232 and the Revenue Code section 118 etc.

Prejudicial Effect Probative Value

[Section 226/1 vs. sections 226, 84 para.4 and 134/4 para.3] 5

Stages of Evidential Consideration

Note: Cri.P.C. = The Code of Criminal Procedure , Civ.P.C. = The Code of Civil Procedure, s.= section, para. = paragraph

1. Disputed Issues ? Need for Evidence ? (Civ.P.C s. 84)

2. Legal Burden of Proof Order of Proof

3. Admissibility of Evidence ? Doctrine of Free Proof ? As a Rule.

Exclusionary Rules ? As Exceptions to the Rule.

4. Introduction or Adduction of Evidence to the Court.

5. Weight or Reliability of Evidence

Principle of Free Appreciation of Evidence

Standard of Proof

Rules of Practice ex. Corroboration.

Civ.P.C. s. 183 para.1

Cri.P.C s. 174 (Civ.P.C s. 84/1)

6

Policy Framework

on Admissibility of Evidence

1. Evidence with highly probative value, having little

misleading effects, shall be admissible.

2. Evidence with very low probative value, having highly

misleading effects, should be excluded or inadmissible.

3. Evidence with reasonable probative value, having

certain extent of misleading effects, should be

admissible; not being excluded, but the triers of fact,

whether the court or the jury, must be very cautious in

considering weight of that evidence.

7

7 Stage in Criminal Procedure1. Investigation as prerequisite of Public Prosecution

2. Committal Proceedings or Preliminary Hearing in Case of Private Prosecution

3. Indictment of the Private or Public Prosecutor

4. Explain the indictment and appoint legal counsel for the Accused then asking the accused to plead

5. If he pleads guilty Cri.P.C section 176 para.1 If he pleads not guilty Cri.P.C sections 173/1 – 173/2 Examination

of Evidence

5. Main Trial

6. Judgment

7. Appeal and Further Appeal

or

Defence of the Accusedand

orsections 229/1 and 240

8

1. Reporting of Crime

2. Preliminary Gathering of Evidence

3. Enough Evidence to show who can be identified as a suspect

9

4. Arresting a Suspect

5. Investigation the Accused

6. Prosecution

3.1 by Public Prosecutor Arraignment

3.2 by Private Prosecutor Committal Proceedingsor Preliminary Hearing

Filing the Indictment to the Court

(the victim of a crime)

Questioning an Arrested Person

10

Once a crime is reported to the Police

1. Preliminary Gathering of Evidence and Interrogation of Witness Prior to Arrest

2. Arresting a Suspect

2.1 With or Without Arrest Warrant

2.2 Warning the Arrested’s of their Rights s.83 para.2 or s.84 para.1

2.3 Questioning the Arrested s.84 para.4

3. Investigation Stage

3.1 Gathering of all avaible evidence to prove the Accused’s guilt or

innocent. s.131

3.2 Warning the Accused of their Rights. s.134/4 para.1

3.3 Making sure the Accused does have their Legal Counsel before

Questioning them. s.134/1

3.4 If the Accused requests to have lawyer or trusted person to be

present during the questioning, the investigation officer must give

permission. s.134/3 11

Pre-Trial Stage in Criminal Case

1. Arraignment Stage

1.1 Assignment of Defence Counsel to the Accused

(Cri.P.C section 173)

1.2 Read and Explain Indictment to the Accused and ask

for a Plea (Cri.P.C section 172 para.2)

1.3 If the Accused pleads “guilty” = confess to the court

(Cri.P.C section 176 para. 1)

Cri.P.C. s. 229/1 para.4

2. Discovery of Evidence

2.1 in case the Accused pleads “not guilty”, the court

may order to have examination of Evidence before

trial(Cri.P.C section 173/1 para.1)

2.2 List of Evidence shall be served

2.3 Documentary and Real Evidence shall be examined

(Cri.P.C section 173/2 para.1)

In case of violation

Cri.P.C. s. 240 para.3

- under Cri.P.C. s. 173/1 para. 2-3 or- under Cri.P.C. s. 229/1 as the case may be

12

I. Pre-Trial Stage in Civil Case

1. Disputed Issues ?

2. Which issues require proof ? ( Civ.P.C. section 84 )

3. Which party should be responsible for providing proof? ( Civ.P.C. section 84/1 )

II. Main-Trial Stage Principles of procedures

for taking evidence

4. Which party should be the first to present evidence ?( Civ.P.C. section 183 para.1 in the end )

5. Specify the first day of taking evidence?( Civ.P.C. section 184 )

Settle-down

for Trial

13

Burden of Proof in Civil Case

Rule : A party who asserts or alleges a disputed fact in each issue must prove that fact

Exception : except there is Preliminary Presumption in favour of that party.

Result The legal burden of proof is then shifted to the other party.

1. Disputed Issues ? section 183 para.1, section 172 para.2, section 177 para.2 and section 84(3) (ประเด็นข้อพิพาท)

(การชี้สองสถาน)Settle-down for Trial

(1) Legal Presumption or

(2) Factual Presumption

Note: para. = paragraph

2. Legal Burden of Proof ?(ภาระการพิสูจน์ในแต่ละประเด็น)

section 84/1

3. Order of Proof ?(การจัดล าดับน าสืบก่อน - หลังท้ังคดี)

section 183 para.1

4. Standard of Proof ?(มาตรฐานการพิสูจน)์

On the balance of Probability or Preponderance

To consider issue by issue

14

I. The disputed issue is essential in the court procedure

(1) Civ.P.C. section 84 and 84/1

Consideration for Proof and Burden of Proof

must be decided issue by issue disputed between the

parties.

(2) Civ.P.C. section 86 para.2

+ 87(1) and 118 para.3(1)

Disputed issues are used to consider

which points are relevant. Section 86

para.2, section 87(1) and section 118

para.3 exclude irrelevant evidence.

(3) Civ.P.C. section 142

The court cannot proceed with or decide non-

disputed issues

Unless they are related to Law of Public Order and

Morality, section 142(5) empowers the court to rule on

that issue.

/ II. Results...

(4) Civ.P.C. section 225

Section 225 does not allow an

appeal on issues not raised orwrongly raised in the Lower Court.

DISPUTED

ISSUES

15

A ruling or a court order has to be in accordance with the disputed

issues of a case. The court cannot rule on a case based on a point not

being the disputed issue. Exemptions include the following:

(1) A legal problem relating to peace and order, in which case,

the court is entitled to raise and decide it on the court’s initiative.

[section 142(5)]

(2) When the court is able to rule on a point of significance

which can lead to a satisfactory conclusion of a case, it can decide not to

consider other issues.

Section 142

Rule 1

Rule 2

A ruling or court order shall not allow a party to benefit beyond

the scope of the request filed by that party, except (1) ... (2) ...

(3)...(4)...and (6)

16

Judgment of the Supreme Court of Justice(Deka) 4979/B.E.2545

The case had only 1 disputed issue which was whether the defendant had

sold a plot of land in question to the plaintiff before making a lease contract.

Therefore, the Lower Court’s role in specifying that the issue of dispute was

related to the plaintiff’s power to sue for repossession of the land after 1 year

was unlawful. This question was not mentioned by either party in the Supreme

Court. As this problem was question of law relating to the peace and order of

the people, the Supreme Court had the authority to bring this matter up for

consideration by virtue of The Codes of Civil Procedure, section 142(5),

applicable in Appeal Court by section 246 .

Judgment of the Supreme Court of Justice(Deka) 7373/ B.E. 2547

The disputed issue of the case was whether a meeting of a company’s

shareholders, took place. The court specified a disputed issue to be whether a

meeting would be legal. The identification of the issue was not lawful with

respect to the Peace and Order Law. The Appeal Court could annul the ruling.

Therefore, although a party did not object in accordance with Section 183,

Paragraph 3, an appeal could be sent to the Court of Appeal to have thejudgment of the lower court annulled. 17

3.1 Any points alleged in the

complaint must be clearly denied in

the defendant’s answer, if not, the

court would be deemed that the

defendant has admitted it according

to section 84(3) and would not be a point of dispute.

3.2 The defendant has the right to

raise an issue in his or her Answer.

The defendant must state that issue

clearly in the Answer with clear reasoning to support that issue.

3.3 Care must be taken by the

defendant not to write contradictory

statements, if so, parts of the

statements would be regarded as

being ambiguous and could not

become points of dispute.

Civ.P.C.S. 183 para. 1

1

S. 172 para. 2Any points not included in the

complaint of the plaintiff are not

points of dispute.

The court cannot give a ruling

because they are points outside the

disputed issues which are not

allowed, as per section 142 except a

legal question relating to the Peace

and Order.

2

S. 84(3)Facts admitted or

deemed to admit by bothparties in court

4

S. 177 para. 2

3

1. Amount of Damages

2. Relevant Laws relating to the Peace and Order, section 142(5)

Exceptions

1. How to write a Pleadings clearly?2. How to avoid writing a contradictory

Answer?3. How to deal with a disputed issue if the

defendant defaulted to submit an Answer?4. Disputed issues in the case that the

defendant files a counter complaint?

?? Problems ?? Disputed Issue must originate from

the Pleadings. Dispute out of the Pleadings

shall not become Disputed Issue.

Rule 1

Rule RuleRule

Principle and Criteria in Identifying Disputed Issues18

II. Disputed Issues must be specified clearly and completely by the court

= no less – no more – no miss must not be different from the points

filed by either party in their Pleadings.

If a point is omitted, it can be regarded as unharm error.

If an additional point is made, then it is regarded as an error of an

essential principle, Deka 4979/B.E.2545. Decision of the trial courtmust be quashed and the case be remitted to the trial court for re-trial.

If a point differs from dispute raised in the Pleadings, it is regarded asan error of an important significance, Deka 7373/B.E.2543.

Note: Deka = Judgment of the Supreme Court of Justice

III. Correction of Error made by the Court of first instance

Missing point? An objection must be made, if not done so within 7days, that point would be disregarded and not be included in thedispute. A challenge against a ruling on the objection must beproduced according to the Code of Civil Procedure, s.183, para. 3, ifnot, an appeal cannot be lodged [s. 226 para. 1(2)]

An additional or wrong point ? (Deka 7373/B.E.2547), it is regardedas an error of law relating to peace and order, the affected party mayrequest the appellate court to correct without the need to make anobjection and challenge under s. 183 para.3 by virtue of s.225 para.2 19

Guidelines for Specifying Disputed Issues in Civil and Commercial Litigations

1. Disputed issues must originate from the Pleadings including essentially the complaint of the

Plaintiff and the Answer of the Defendant (Section 183 para.1).

1.1 Any issues outside the complaint cannot be used to provide points of dispute. This is

despite that such issues may be disclosed to the court verbally or in writing. Even

though the court may have recorded the issues in the Court’s file during the court

proceedings, the issues cannot become the points of dispute.

1.2 Should the parties agree to have additional points other than those in the Pleadings, the

court still cannot use them as points of dispute. However, a statement or an agreement

with the court to discard points of dispute may make the original disputed issues in the

Pleadings be deemed admitted. (Section 84(3)).

1.3 Points of dispute raised by the Defendant in his Answer can be made even if the Plaintiff

has not objected. This can give rise to a continuing issue which the Plaintiff may raise

against the allegation in the Defendant’s Answer.

1.4 A dispute for damages is possible even if the defendant has not denied the amount of

damages mentioned by the Plaintiff. It has to be proved how much damages the Plaintiff

has endured.

2. The complaint must be written clearly. Any fact not shown or written clearly in the

complaint would not be the points of dispute (section 172 para. 2). That is, the Plaintiff cannot

have such facts examined in court. Furthermore, the court cannot rule on these facts as they would

be points outside the complaint in the first place.

Section 177 para.2

1. The defendant in civil case must state clearly in his

Pleading which assertion of the plaintiff (appearing in the

complaint) he wants to deny.

The court has to take the fact as deemedly admitted

according to section 84(3); and no disputed issue on that fact

exists.

2. New allegations raised by the defendant must be clearly

stated in his pleading and giving explicitly supporting

reasoning, otherwise they shall not become disputed issues.

3. Where the defendant’s Pleading appears to be self-

contradiction, it may be deemed “not clearly state” and the

second part shall not become a disputed issue.

An assertion appearing in the complaint not denied by the defendant

or denied but not clearly shall be deemed to be admitted by the defendant

21

3. The Defendant’s Answer must be written clearly.

3.1 If any fact alleged in the complaint filed by the Plaintiff is not clearly denied, it would

be regarded that it has been admitted. Thus the court can take the fact as conclusive and

not being the disputed issue as per section 84(3).

3.2 The defendant has the right to raise a disputed issue in his Answer. The Plaintiff is not

obliged to deny or object that allegation but the defendant must state clearly in support

of the allegation. If not, it would be regarded that the statement was ambiguous which

would be illegal and not be the point of dispute in accordance with section 177 para. 2.

3.3 An Answer of the same defendant shall not be self contradictory. If so, the Answer

would be unclear and illegitimate according to section 177 para. 2.

However, not all the statements in the Answer would be of no value. Any points objected

clearly against the allegation of the Plaintiff can still be the points of dispute. Only contradictory

statements and unclear allegation would not become the points of dispute.

4. If the defendant does not submit an Answer within 15 days after receiving a summon to

submit an Answer, it would cause the defendant being in default of submitting the Answer as per

section 197, and section 177 para. 1. In which case, it would not be interpreted that the defendant

has admitted the allegation as stated in the Plaintiff’s Complaint.

5. In case the court has wrongly specified the points of dispute, Civ.P.C. section 183 para. 3

obliges the affected party to make objection to the Court within 7 days. The court shall make a

ruling on that objection before the first date of hearing. The court’s ruling is regarded as “during-

trial order” under section 226 against which the affected party can not appeal unless he files

challenge before judgment.

Guidelines for Specifying Disputed Issues…

22

1. Any additional point raised by the defendant’s Answer, if stated clearly with a sound

reason, can become a point of dispute. If not, it cannot be a point of dispute. This

disputed issue arise from the Defendant’s Answer without the need for any objection

or denial whatsoever because the Plaintiff is not obliged to deny the allegation made

by the defendant’ s Answer. (Deka 3423/B.E. 2554 and 3780/B.E. 2546).

2. This kind of dispute is usually the responsibility of the defendant to provide proof

as it is a new point brought up by the defendant except (1) the authority to file a

lawsuit (2) the statute of limitations.

3. The Plaintiff has the right to prove against the Defendant’s allegation through all the

channels available by law. Example 1, the contract document is a fake. Example 2,

the contract alleged by the defendant is invalid or incomplete according to the law.

4. In case the Plaintiff has proved that the document adduced by the defendant is

forged and the presentation of a witness is in accordance with Code of Civil

Procedure, section 94, paragraph 2. But if the Plaintiff did not previously challenge to

the court about the authenticity of the document as per section 125 para.1, it would

not be possible to prove that the document was forged according to section 125 para.

3 whether in respect to witnesses or experts or other kind of evidence.

5. Section 125 does not apply in case involving a proof that “contract or debt”

stipulated in the document is invalid or unlawful.

Points of Dispute from the Defendant’s Answer

23

Weak points or Shortcomings of the Law of Evidence

1. Ambiguity, complexity and confusion could be misleading,

resulting in an unjust trap e.g. Civ.P.C. section 183 para. 1.

2. Too much emphasis on technicality and strict

implementation of the procedure for the judicial review could lead

to a missed opportunity to apply the relevant substantive laws.

Consequently, a mistrial could follow because of an error with the

court procedure as is the case in the Civ.P.C. section 177 para. 2.

3. Justice could be out of reach for the disadvantaged or the

poor because of the lack of an opportunity to have access to legal

experts. The practicing lawyer could make a mistake as a result in

presenting evidence. A trial could be lost because the facts

considered by the court are not found to be true according to the

Law of Evidence. This is despite the fact that they have the right

provided by the relevant law e.g. Civ.P.C. section 94 and Cri.P.C.section 226.

24

When is evidence needed ?(Civil Procedural Code: section 84)

Rule 1:

Question of law must be decided by legal knowledge of the

court, not by evidence / except …

(1) Foreign law

(2) International law

(3) The existence of subordinate legislature lower thanministeral rule

Rule 2: section 84 of Civ.P.C

Question of fact must be decided and proved by evidence

legally adduced to the Court’s file / except…

(1) Generally known fact may be decided by way of judicial

notice;

(2) Undisputable fact must be decided by law, not by evidence;

(3) Fact already admitted or deemed to be admitted in court by

the other party shall be conclusive; Evidence is thereforenot needed.

Shall be deemed question of fact

25

Three Aspects of Question of Law

1. Is there Provision of Laws alleged by either party

operating at particular time ? Question about the

Existence of Law

2. How to interpret that Law ?

what does it mean ?

Question about Meaning of the Law

3. What would be legal consequence in applying that

law to the fact of the case ?

Question of Application

26

Three Aspects of Question of Facts

1. Act of Person ?

Who did what, where, when, why and how ?

2. Mind or Mental State of the Person ?

His or Her intention ?

or Negligence ?

or Feeling ?

a question of mixed Fact and Law ?

3. Incident other than Act and Mind of the Person ?

What happened, when, where and how ?

27

Legal Burden of Proof

1. Legal Burden of Proof

Civ.P.C section 84/1 Party who alleges the fact in each issueshall bear a “Legal Burden of Proof” of the fact.

2. Presumption in Civil Case

Burden of going forward with Evidence

Burden to rebut the Presumption not shift the Legal Burden of Proof

3. If the Presumption is rebutted

Risk of Nonpersuasion remains on the first party.

to prove his assertion.

If not rebutted, the Presumed Fact is established

without further Proof.28

Stock Warrant issued by a Registered Company and given to its share-

holders or employees has several legal status. Apart from being a Document of

Title certifying right of its holder to buy shares of the issuing company in the future

at specified price, it also possesses a status of “Stock” under the Stock and Stock

Market Act 1992 section 4(7). It is therefore regarded as a kind of “Property”

which its holder can sell it outright either in the Stock Market or by a transfer

contract under the Civil and Commercial Code section 309 without the need to

have bought the shares stipulated therein.

Since the right to buy the stipulated share under the Warrant is a kind of

property capable of being bought and sold, it shall have “price” to be assessed in

term of money on the date it was received as provided in the Revenue Code

section 9 bis, not a mere right of claim to get something in the future. The person

who received The Stock Warrant, thus, is deemed to have “Taxable Income” and

have to pay tax on it.

Judgment of the Supreme Court of Justice(Deka)

10778/B.E.2557

/ This income… 29

This Income received by the Plaintiff is regarded to had been received at

the date of the Warrant issued to the Plaintiff; i.e. well before the date when the

Plaintiff sold the Stock Warrant in the Stock Market. The Income is therefore

not the sum received from sell of stock in the Stock Market and shall not be

exempted from Income Tax under the Revenue Code.

The problem about the price of the Stock Warrant is “a question of

fact’ to be proved by “Evidence” according to section 84 of the Civil

Procedural Code. This fact must be proved by the party who alleges it. As,

in this case, the Plaintiff who alleges that the Stock Warrant did not have

any price unless and until he sold it in the Stock Market, he shall bear a

“Legal Burden of Proof” of the fact by virtue of section 84/1 of Civil

Procedural Code.

Deka 10778/B.E.2557

30

Tactical Burden of Proof

1. Tactical Burden of Proof Legal Burden of Proof

2. Tactical Burden of Proof หน้าที่น้าสืบหักล้างท้าลายน้้าหนักพยานหลักฐานของฝ่ายท่ีมีภาระการพิสูจน์

3. Evidential Burden of Proof ? หน้าที่น าสืบให้เห็นมูลกรณีหรือมูลคดีในเรื่องนั้น

4. Burden of going forward with Evidence ?

31

Tactical Burden of Proof

Proof against Evidence of the Party

owing legal burden of proof

1. Proving that the evidence of the

opposite party is inadmissible; or

2. Proving that such evidence, although

admissible, is unreliable.

32

“Were the position otherwise, The Section would almost never operate.”

Presumption

1. Absolute Preliminary

irrebuttable rebuttable

Section 84(2) Section 84/1

2. Basic Facts Presumed Fact

Legal Burden of Proof is on a party who shall benefit from presumed fact.

3. In case of Conflicting Presumption

3.1 absolute presumption conflicts with preliminary presumption ?

Absolute - - prevails

3.2 Preliminary presumption conflicts with preliminary presumption ???

/4. Factual…

?? 1712/2527 ??

(1) the same presumption ? Deka 4066/2558

(2) different provision of presumption ? Deka 10358/2556 9499/2556 ?

and 4679/2559**33

Legal Presumption

1. A piece of land with Document acknowledging use and exploitation of land

(N.S.3K. Document), the Document is regarded as “public document”

under section 127 of the Civ.P.C. and also as “document of land right” shall

be presumed as “true and correct” under section 1373 of the C.C.C.

≠ s.s. 1367+1369 ?

On the contrary, a piece of band without document of title, i.e. doesnot have Title Deed (โฉนด) or Document acknowledging use and exploitation

of land (น.ส.3 or น.ส.3ก.) does not enjoy the benefit of Civ.C.C. section 1373

and Civ.P.C. section 127. It shall be governed by Civ.C.C. sections 1367

and 1369: preliminarily presumed that the person who possess it having the

right of possession.

3. The Liability for Damage arising from Unsafe Product Act 2008 sections 5

and 6 primarily presume Fault on the part of Business operators and further

presume that the product is unsafe.

2. The Consumer Case Procedure Act 2008 section 29 primarily presumes Fault

on the part of Business Operator in case where damage arises from process

of production, packaging or method of doing business and the fact of which

is under exclusive knowledge or control of the business operator.

Presumed Fact

Basic Fact 1 Basic Fact 2

34

4. Factual Legal Presumption ?

Res ipsa loquiturThings speak for themselves.

สรรพสิ่งย่อมประกาศถึงสภาพปกติธรรมดาองตัวเองFactual Presumption of Negligence in Tortious Case

“ข้อสันนิษฐานที่ควรจะเป็น (Fact reasonably presumed)

ซึ่งเกิดจากสภาพปกติธรรมดาของเหตุการณ์”

(ผล)

(เหตุ) = basic facts(Ordinary Course of Event)

Exclusive Knowledge or Control over things or activity that cause damage. (Deka1320/2559)

Example

35

Res ipsa loquitur

- Control or

- Management or

- Knowledge

2. of Things, Activity or Event

causing Damage in question

1.Exclusive

36

Legal Burden of Proof in Criminal Case

1. Question of Guilt

Rule: every element of the offence must be proved by

the Prosecutor.

Exception: there is presumption to the advantage of the

Prosecution

Note Question of self - defence?

Question of innocent consent?

Presumption of Guilt ?

unconstitutional ?

2. Question of Penalty

The Accused alleges he owes legal burden of proof.

3. Other Question

The party who alleges the fact has to prove that fact.37

Innocent Consent of the Aggrieved

Person may be used as an exception to

criminal liability, provided that the consent is

not prohibited by a provision of law and is

not against good conscience of the people.

38

The defendant raises this fact in order to

be excused from criminal liability he is

regarded as the party who alleges this fact, he

shall bear legal burden of proof.

Order of Proof

1. In criminal proceedings. The Prosecutor is obliged, by

virtue of section 174 of the Criminal Procedure Code, to

adduce his/her evidence to the Court first and before the

Accused.

2. With regard to Civil case, the court is empowered, by section

183 para.1 of the Civil Procedure Code, to have discretion to

arrange which party shall introduce evidence to the court

before or after one another.

The Supreme Court of Justice has, however, laid

down, by ways of its judgments, a precedent that the party

having the more significant legal burden of proof, i.e. burden

on the decisive issue of the case, shall introduce evidence

before the other party.39

Admissibility of Evidence

Rule: Every piece of evidence having probative value to

prove fact in the case is admissible. It shall be used

in proving fact of the case But it is not

conclusive. The triers of fact have to consider its

weight and reliability.

Exception: If there is a provision of law stating that it can

not be used as evidence. It becomes

inadmissible, namely, it can not be used by

triers of fact. The court has to exclude it. The

said provisions of law are called

“Exclusionary Rules”.40

Policy Framework

on Admissibility of Evidence

1. Evidence with highly probative value, having little

misleading effects, shall be admissible.

2. Evidence with very low probative value, having highly

misleading effects, should be excluded or inadmissible.

3. Evidence with reasonable probative value, having certain

extent of misleading effects, should be admissible; not

being excluded, but the triers of fact, whether the court

or the jury, must be very cautious in considering weight

of that evidence, e.g. section 104 of Civ.P.C. or section

227/1 of Cri.P.C. as the case may be.41

1. Rule against Forged or False Evidence

2. Rule against Irrelevant Evidence (s. 86 para.2, s. 87(1) and s.104 para.1)

or Superfluous or Vexatious or Privolous or causing undue

delay (s. 86 para.2)

3. Rule against Hearsay Evidence

3.1 Cri.P.C. s. 226/3 and s. 227/1

3.2 Civ.P.C. s. 95/1 and s. 104 para.2

4. Rule against Evidence of The Accused’s Bad Character or

Record Cri.P.C. s. 226/2 para.1

/5. Rule against

Exclusionary Rule

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5. Rule against Illegally

or

Obtained Evidence Cri.P.C. s.226,

s.84 para.4, s.134/4 para.3

≠ and s. 226/1

Improperly

6. Rule against Evidence of the Victim’s sexual behaviour in

Sexual Offence case Cri.P.C. s. 226/4 para.1

7. Rule against Parol Evidence Civ.P.C. s. 94 ≠ Cri.P.C. s. 232

8. Rule against non – affixed stamp Document the Revenue

Code s. 118

9. Rule against Evidence of the Defendant defaulting to file their

Answer Civ.P.C. s. 199 para.2

In U.S.A. this rule is referred to as The Exclusionary Rule and Fruits of poisonous tree

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Exceptions to The Exception Admissible Evidence

1. Section 226/1 of the Criminal Procedure Code

“…unless the admission of that evidence shall be of interest

to the administering Justice in the case more than disadvantage

to the standard of criminal justice system or protection of basic

right and liberty of the people.”

3. The Code of Civil Procedure, section 94 para.2

2. Section 226/3 para.2(1)-(2) of the Criminal Procedure Code

“…Hearsay evidence is inadmissible / except:

(1) it has highly probative value or

(2) it is necessary due to unavailability of original evidence

...and there is a reasonable ground in the interest of

justice

+

+

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Exclusion of Evidence applied to both

Civil and Criminal Cased

4. Rule against two type of Witness

(Civ.P.C s.95(1) and (2) and Cri.PC. s.15)

2. Rule against Forged or False Evidence

(s. 177 para.2 and s.125 para.3)

3. Rule against Hearsay or Hearsay Rule

3.1 Cri.P.C s. 226/3 and s. 227/1

3.2 Civ.P.C s. 95/1 and s. 104 para. 2

1. Civ.P.C section 86 para.2

1) Superfluous

2) Vexatious = causing unjustifiable Expense and Delay

3) Irrelevant[s. 87 (1) and s. 118 para.3(1)]

s. 104 para.1

Note:

Applicable

mutatis

mutandis to

Criminal case

by virtue of Cri.P.C. s.15

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Exclusionary Rules Exclusively apply in Criminal Case

2. Rule against Evidence of the Accused’s Bad Records

* Section 226/2 *

3. Rule against the Accused’s Evidence in sexual offence case

* Section 226/4 *

1. Rule against illegally occurred or obtained Evidence

* Section 226/1 *

* Section 226 + Section 84 para.4 + Section 134/4 para. 3 *

4. Section 232: the Prosecutor can not request the Accused to

testify as the prosecutor’s witness.

It is allowable, however, if the Accused exercise

his right to testify as his own witness. In such case, the court is

entitled to use the Accused’s testimony to corroborate other

evidence of the Prosecutor.(Section 233 para. 2)46

Exclusionary Rules in Criminal Case

Rule against

Illegally ObtainedEvidence

Rule against

two types of Witness

5

Rule against

Irrelevant or

Superfluous or

Vexatious Evidence

7

Rule against

the Accused’s

Evidence in

Sexual Offence Case

4

Rule against

Forged or False Evidence

6

1

1

Rule against

Evidence of the

Accused’s Bad Records

3

Rule against

Hearsay Evidence

2

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Exclusionary Rules applied in Civil Case

Rule against

Forged or False

Evidence

5

Rule against

2 types of Witness*Civ.P.C section 95(1) and (2)*

7

Rule against all evidence of

the Defendant defaulting to

file their Answer*Civ.P.C section 199 para.2*

4Rule against - Irrelevant or- Superfluous or- Vexations

Evidence*Civ.P.C section 86 and 87(1)*

6

Rule against

Parol Evidence*Civ.P.C section 94*

1

Rule against non-affixed

stamp Document*Revenue Code, section 118*

3

Rule against

Hearsays*Civ.P.C section 95/1*

2

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Exclusionary Rules apply specifically in Civil Case

1. Section 199 para.2 of the Civil Procedure Code prohibits the

defendant from introducing any evidence to the court in case

where he was defaulting to file his Answer.

He has, however, right to cross-examine the Plaintiff’s

witness; and in the course of the cross-examination, he may

submit documentary and real evidence to the court as a part

of the cross-examination, provided that the witness admitting

the existence of such evidence.

2. Section 94 para.1 (a) and (b) of the Civil Procedure Code

Rule against Parol Evidence with 4 exceptions in para.2 .

3. The Revenue Code section 118 Rule against non-affixed

stamp document.

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Weak points or Shortcomings of the Law of Evidence

1. Ambiguity, complexity and confusion could be misleading,

resulting in an unjust trap e.g. Civ.P.C. section 183 para. 1.

2. Too much emphasis on technicality and strict

implementation of the procedure for the judicial review could lead

to a missed opportunity to apply the relevant substantive laws.

Consequently, a mistrial could follow because of an error with the

court procedure as is the case in the Civ.P.C. section 177 para. 2.

3. Justice could be out of reach for the disadvantaged or the

poor because of the lack of an opportunity to have access to legal

experts. The practicing lawyer could make a mistake as a result in

presenting evidence. A trial could be lost because the facts

considered by the court are not found to be true according to the

Law of Evidence. This is despite the fact that they have the right

provided by the relevant law e.g. Civ.P.C. section 94 and Cri.P.C.section 226.

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Thank you

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Rule against Parol Evidence

1. Rule against Parol Evidence is an ancient Common

Law rule, dating back more than 200 years. It is narrower

than the rule against Extrinsic Evidence, since it excludes

only oral testimony of a witness, does not exclude

documentary and real evidence.

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2. In English law, this rule operates in cases of contract

made in writing no matter whether required by law to be in

writing or not. (≠ Civ.P.C. section 94)

3. The rule continues to apply in England and Wales but

seems to be less stringent than in the past; and various

exceptions have been augmented.

4. In U.S.A. and Australia, the rule has been regarded as

substantive law, therefore, very little has been dealt with in

the Law of Evidence.

Rule against Parol Evidence(Civ.P.C. section 94)

1. Conditions of the Rule

“Where a law requires a Proof by Document”

1.1 a dispute on Contract or Juristic Act

1.2 required by law to be made or evidenced in writing.1.3 asking the court to enforce it directly

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2. Scope of the Rule

There shall be two prohibitions

(a) to introduce a Witness in place of a Document

without presenting the document to the court.

(b) to introduce a Witness to add, amend or distort aStatement in the Document

3. Exceptions to the Rule

(1) Civ.P.C. section 93(2)

(2) to disprove Authenticity of the Document

(3) to prove invalidity of contract or obligation in

the Document(4) to Interpret the Document

In cases where a party requests the court to directly

enforce juristic act or contract required by law to be

made or evidenced in writing, parol evidence or witness

shall not be admissible in order to:

(1) prove the existence and content of the alleged

juristic act or contract without introducing the

document of such juristic act or contract;

(2) After the said document has been introduced

to the court, both parties shall not be entitled to

introduce a witness to amend, add or distort essential

statements in the document.

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(draft)

Section 94Civil Procedure Code

The inadmissibility of a witness provided in the

first paragraph shall not apply to the following cases:

(1) Where the document has been lost or

destroyed or cannot be brought to the court without any

fault of the party who claims on the document, or the

court permits on the ground of necessity and in the

interest of justice, the said party may introduce a witness

in place of the document; [by virtue of section 93(2)]

(2) Subject to section 177 para.two or section

125 as the case may be, the opposite party is entitled to

introduce witnesses in order to prove that the document

is forged wholly or partly;

(3) Subject to section 177 para.two, the opposite

party is entitled to introduce witnesses to establish

invalidity of juristic act or contract or obligation in the

document;

(4) To interpret or construe the contract where

there is any ambiguity or vagueness.55

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Example

An instrument (Formal Document)

required by law to pay a stamp tax but has not

been paid for, shall not be admissible as

evidence in a civil case / unless and until a

stamp has been affixed and deleted.

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Revenue CodeSection 118

Proposal for Change

1. From “Document” to “Instrument” and to

include “Electronic Document”

2. From “correctly paid” of stamp tax / duty to

“Full amount” of the tax / duty including

“Penalty” and “Surcharge” (if any) must be

correctly paid

3. Otherwise that document shall be inadmissible

in “non - criminal cases”

4. with an exception if the document’s tax or duty

with surcharge and the penalty is correctly paid

well before the case becomes final.

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