consider a typical piece of observational evidence, where Sally, the witness says: “I saw
the defendant walk on Jeremy’s land.” This reveals the two components of evidence.
First, it consists of facts. In the example, the defendant walked on Jeremy’s land. Second,
it consists of an observational or cognitive claim to truth of these facts. In the example,
the witness Sally claims that the defendant walked on Jeremy’s land because she “saw” it
happen. In view of this, it can be seen that the relationship of fact and evidence is that
evidence consists of facts with the addition of a claim that the facts are true.
4.6 Issues of Fact
Introduction
The simple form of the model portrayed above will be developed or expanded to display
and define an issue of fact. Then there will be discussion of how to resolve the issue of
fact.
Defining the Issue
Let us use Element 3 of some cause of action to illustrate an issue of fact in a
hypothetical case. As set up for this illustration, there are two versions of Fact 3, Fact 3P
alleged by the plaintiff and Fact 3D alleged by the defendant. Fact 3P satisfies Element 3.
Fact 3D, however, does not satisfy Element 3. Instead it establishes the absence of
Element 3, namely, Non Element 3. These can be set out in a developed form of the
model in the following way:
Element 3
Fact 3
Evidence 3
Element 3
Fact 3P
Evidence 3P
Non Element 3
Fact 3D
Evidence 3D
Figure 4.10 Issue of Fact
In this hypothetical case the plaintiff has Evidence 3P that might prove Fact 3P, while the
defendant has Evidence 3D that might prove Fact 3D. This shows the basic point, that an
issue of fact is a contest between two sets of evidence. One will establish a fact that
satisfies an element of the cause of action, while another will establish a fact that will not
satisfy this element. Thus, the question is, in simple terms, whether the court accepts
Evidence 3P rather than Evidence 3D. More precisely, factoring in the standard of proof,
the question is whether the court is sufficiently satisfied of the existence of Fact 3P by
Evidence 3P to discharge the relevant standard of proof. Questions of fact are resolved
according to a model for proving facts.
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Resolving the Issue
Model for Proving Facts
[10.] Trial lawyers and judges have a practical understanding of the task of fact finding.
For this reason, the account here of fact finding is brief and simply tries to state in a
formal way a model for proving facts that courts are using, even if just implicitly.
[10.] This model for finding facts consists of three steps:
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Christopher Enright (2008) Legal Method www.legalskills.com.au
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