of the tasks which these processes entail is not generally scientifically
determined; in practice it tends to involve human rather than scientific
judgments, even if these judgments can be made based on some good reason.
Step 1: Versions of Truth
Parties disagree on the facts and in consequence allege competing versions of
truth, this disagreement being the cause of their dispute. In Step 1, parties
present these competing versions to the court when they give their evidence.
Obviously in writing a judgment a court must allude to and sufficiently detail
these competing versions along with the evidence that supports each version.
Evidence involves presentation of facts to a court backed by some claim that
these facts are true. It can take a number of forms,
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which consist of the
following:
(1)
Observation. (i) Presentation of Facts. (a) In the obvious case a witness
is the source of observational evidence. (b) Observational evidence can also
come
from equipment or from records of an organisation. (c) A court can
observe some facts for itself. (ii) Claim for Truth. The claim for truth for
observational evidence rests directly on the accuracy of the observation as
made initially and as subsequently given to the court.
(2)
Inference. (i) Claim for Truth. Inference can be based on patterns of
behaviour or causation. Patterns of behaviour involve reasoning in an inductive
way –
things usually happen in a certain way so this is how they have
happened in this case. Causation is involved in scientific evidence. At its core,
it is based on deduction. (ii) Presentation of Facts. Parties can present facts
based on inference as they make out their case. An expert witness usually
testifies as to facts based on scientific evidence.
(3)
Deeming Provisions. (i) Claim for Truth. Facts can be legally deemed to
be true. This can happen in any of five ways –
by judicial notice, by
agreement, by admission by the parties, by a legal presumption or by
operation of a statute. (ii) Presentation of Facts. Where facts are based on
deeming provisions the parties presented them to the court as they make out
their case.
Step 2: Probability of Truth
Introduction
Parties, of course, are responsible for the first process, presenting evidence to
the court of their competing and conflicting versions of the truth. When this
has been done, responsibility shifts to the court, which in Step 2 now has to
assess the probability that each version is true. Discussion will focus on the
two key areas of difficulty – observation by a witness and inference.
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Christopher Enright Legal Method Chapters 21-22
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