Facts in Issue Overview
‘A fact in issue’ is a fact which is to be determined as a matter of substantive law (the elements of the offence or the cause of action). Thus, ‘a fact in issue’ has been described as ‘the ultimate fact in issue’, behind which issue ‘there will often be many issues about facts relevant to the facts in issue’ (Smith v R (2001) 206 CLR 650; [2001] HCA 50).
Evidence will not be relevant if the only issue to which it relates is a question of law. However, a court may receive expert evidence when determining whether particular words or phrases have any specialised meaning and, if so, what that meaning is.
A fact in issue is that fact, which fundamentally affects the dispute before the court.
The facts in issue would often be that thing over which both parties disagree or which one party (prosecution) is expected to prove to the court. The resolution of that thing which the parties disagree over would then, in effect, end the dispute. This is why facts in issue fundamentally affect the dispute.
Facts in issue are the cornerstone of any dispute. They determine what the court has to resolve and as such, must be proved by the party who has the burden of proving them. If that party fails to prove those facts at all or fails to prove them satisfactorily, his chances of succeeding in the case before the court would be very slim.
Example
‘A’ is accused of the murder of ‘B’.
At his trial the following facts may be in issue:—
That A caused B’s death;
That A intended to cause B’s death;
That A at the time of doing the act which caused B’s death, was, by reason of unsoundness of mind, incapable of knowing its nature.
Relevant fact
The word ‘relevant’ has two meanings. In one sense, it means “connected” and another sense “admissible”. One fact is said to be relevant to another when the one is connected with the other, in any of the way referred to in the provisions of the Evidence Act relating to the relevancy of facts
Relevant Evidence
In deciding whether evidence is relevant, the trial judge is neither required nor permitted to make any assessment of whether the jury would or might accept that evidence, but must proceed on the assumption that it will be accepted: Adam v The Queen (2001) 207 CLR 96 at [22], [60]; R v Shamouil (2006) 66 NSWLR 228 at [60]–[62].
It is suggested that the same assumption should be made where the judge is also the tribunal of fact.
The test of relevance — that the evidence could rationally affect (directly or indirectly) the assessment of the existence of a fact in issue in the proceeding — directs attention to the capability rather than the weight of the evidence to perform that task, but the issues of credibility or reliability may be such in the particular case that it is possible for the judge to rule that it would not be open to the jury to conclude that the evidence could perform that task: R v Shamouil at [62]–[63]; DSJ v R (2012) 215 A Crim R 349 at [8], [53]–[56].
