Principles of the Common Law (Originally Based on Indermaur's Common Law). With a Short Outline of the Law of Evidence

1939 ◽  
Vol 3 (1) ◽  
pp. 199
Author(s):  
A. M. Wilshere
Keyword(s):  
Common Law ◽  
The Common ◽  
The Law ◽  
Law Of Evidence

Reforming the Law of Evidence in Nigeria

2000 ◽  
Vol 44 (1) ◽  
pp. 128-129
Keyword(s):  
Common Law ◽  
Law Reform ◽  
Technological Advances ◽  
The Common ◽  
The Law ◽  
Law Of Evidence

The Nigerian Law Reform Commission has recently published a Report on the Reform of the Evidence Act. This was in response to a government directive to “review and reform our Evidence Act to ensure that its application more effectively facilitates the dispensation of justice in our courts”. The Report notes that the Evidence Ordinance was based on Stephen's Digest of the Law of Evidence and on the common law of England as it was in 1943. Understandably, the Report recognizes that the law of evidence had become outdated, especially in view of technological advances. As it notes:

Discretion and Security: Excluding Evidence under Section 78(1) of the Police and Criminal Evidence Act 1984

1990 ◽  
Vol 49 (1) ◽  
pp. 80-90 ◽  
Author(s):  
C.J.W. Allen
Keyword(s):  
Common Law ◽  
The Other ◽  
Rule Of Thumb ◽  
The Common ◽  
Political Compromise ◽  
The Law ◽  
Law Of Evidence ◽  
Court Of Appeal ◽  
The Way

Among rules of law Karl Llewellyn noted at one extreme the “rule-of-thumb, in which the flat result is articulated, leaving behind and unexpressed all indication of its reason”. At the other extreme was “the way of principle, in which the reason is clearly and effectively articulated, and that articulation is made part of the very rule”. The vice of principle, he observed, “can be a vaporish vagueness, and the techniques of its effective formulation are not easy to isolate for communication and use”. Partly for this reason, partly perhaps because of its origin in a last-minute political compromise, section 78(1) of the Police and Criminal Evidence Act 1984 at first confounded attempts to predict the manner of its application. One commentary suggested that it was “of no practical use”; there were dicta in the Court of Appeal to the effect that it did “no more than to re-state the power which judges had at common law before the Act of 1984 was passed”. A leading work on the law of evidence expressed the view that the sub-section was “cast in terms of such vagueness and generality as to furnish little guidance to the court”. There has been some development since those early days. It now seems clear that the Police and Criminal Evidence Act 1984 is to be regarded as a codifying Act which has to be looked at on its own wording. Section 78(1), therefore, does not merely re-state the position at common law. It is also clear that in its operation it overlaps section 76 and, through section 82(3), some of the common law. Section 78(1) may be applied in a variety of situations, with or without the presence of some element of impropriety in the way in which the evidence was obtained. Basic questions about its operation nevertheless remain.

scholarly journals EXTRA-CURIAL STATEMENTS BY A NON- TESTIFYING CO-ACCUSED, THE CANADIAN SUPREME COURT AND CHANGE IN SOUTH AFRICA

Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
BC Naudé
Keyword(s):  
Criminal Justice ◽  
Supreme Court ◽  
Common Law ◽  
Constitutional Court ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The Common ◽  
The Law ◽  
Law Of Evidence ◽  
Court Of Appeal

In S v Ndhlovu (2002 (2) SACR 325 (SCA)), the court opened the door to the admissibility of extra-curial statements made by a non-testifying accused against a co-accused as hearsay in terms of section 3 of the Law of Evidence Amendment Act (45 of 1988), if the interests of justice so require. However, first the Supreme Court of Appeal and later the Constitutional Court rejected such an approach.It is beyond the scope of this comment to repeat the arguments in favour of a discretionary approach for such statements, but it is submitted that there is scope for disagreement with the findings of both courts.Whitear points out that the provisions dealing with the admissibility of hearsay in the Law of Evidence Amendment Act (45 of 1988) were not declared unconstitutional by any court. The Supreme Court of Appeal found that section 3 of the Law of Evidence Amendment Act (45 of 1988) could not be used to admit the extra-curial statement of an accused against his co- accused because the interests of justice would never allow this. The Constitutional Court found that section 3 did not override the common-law rule prohibiting the admission of extra-curial statements against a co- accused since this would amount to unfair discrimination against an accused implicated by such admissions or confessions. Significantly, because it is stated in section 3 of the Law of Evidence Amendment Act (45 of 1988) that section 3 is subject to the “provisions of any other law”, the court decided that the common-law prohibition should prevail.Previously, however, the Supreme Court of Appeal has held that the “other laws” referred to in the Law of Evidence Amendment Act (45 of 1988) are alternative ways for admitting hearsay, and do not preclude the admissibility of hearsay in terms of section 3, even where there is another law that prohibits it. The court also referred with approval to S v Ndhlovu (supra) where it was explained that the very purpose of section 3 of the Law of Evidence Amendment Act (45 of 1988) was to “supersede the excessive rigidity and inflexibility – and occasional absurdity – of the common law position” by allowing for the admission of hearsay when the interests of justice so require. The admissibility of out-of-court statements by an accused against a co- accused is also dealt with differently in the United Kingdom (our relevant common law) today. Section 114(1)(d) of the Criminal Justice Act of 2003 makes it possible to admit the out-of-court statement of an accused against a co-accused as hearsay. However, the court in R v Y (supra par 57−62) did mention that this does not mean such statements should routinely be admitted without a consideration of the relevant factors mentioned in the Criminal Justice Act of 2003 and that, in the majority of cases, it will not be in the interests of justice to admit such statements, especially those made during police interviews.Even though, under South African law, it is not currently possible to present evidence of an extra-curial statement made by an accused that also implicates a co-accused, the recent judgment by the Canadian Supreme Court in R v Bradshaw (2017 SCC 35) provides insight into how this could possibly happen in future. It is thus useful to consider the Supreme Court’s decision.

Murphy on Evidence

2017 ◽  
Author(s):  
Richard Glover
Keyword(s):  
Teaching Method ◽  
Common Law ◽  
Standard Of Proof ◽  
Online Resource ◽  
Character Evidence ◽  
Unique Approach ◽  
The Common ◽  
The Law ◽  
Law Of Evidence

Murphy on Evidence is firmly established as a leading text for use on undergraduate law courses and in preparation for professional examinations. Frequently consulted by judges and practitioners, and regularly cited in judgments, it has come to be regarded as a work of authority throughout the common law world. The book’s unique approach effectively bridges the gap between academic study of the law of evidence and its application in practice, combining detailed analysis of the law with a wealth of practical information about how it is used in the courtroom. As in previous editions, the author’s teaching method is centred around two realistic case studies—one criminal and one civil—presenting challenging evidence issues and questions for discussion at the end of each chapter. The case study material for this new edition has been further developed with new videos on the Online Resource Centre. Fully up to date with the latest developments in this fast-moving subject, the fifteenth edition of Murphy on Evidence is as indispensable as its predecessors. Topics include: the language of the law of evidence; the judicial function in the law of evidence; the burden and standard of proof; character evidence; and the rule against hearsay.

The oath in labour arbitrations: Critiquing an arbitrator’s prerogative to swear in witnesses

2021 ◽  
Vol 138 (4) ◽  
pp. 844-880
Author(s):  
Dennis Matlou
Keyword(s):  
South African ◽  
Common Law ◽  
Law System ◽  
The Common ◽  
Common Law System ◽  
The Law ◽  
Court Proceedings ◽  
Law Of Evidence

Can the oath, affirmation, or admonishment really be selectively administered on some witnesses but not on others? Sworn testimony is one of the most important features of the law of evidence. It is central not only to the continental system of law but also the common-law system on which our South African law of evidence is based. Witnesses testifying in formal court proceedings are required by statute law to swear an oath or make an affirmation or be admonished as to the truth of their testimony. But why is the same requirement not obligatory in statutory labour tribunals, where presiding officers have the prerogative to decide if they require witnesses to be sworn in prior to testifying? In this article, I criticise this prerogative for being ill-conceived, and advocate for its amendment.

scholarly journals A medieval book and early-modern law: Bracton 's authority and application in the common law c. 1550–1640

2011 ◽  
Vol 79 (1) ◽  
pp. 47-80 ◽  
Author(s):  
Ian Williams
Keyword(s):  
Early Modern ◽  
Thirteenth Century ◽  
Criminal Law ◽  
Common Law ◽  
Contract Law ◽  
The Common ◽  
The Law ◽  
Law Of Evidence ◽  
Evidence Of Impact

AbstractThis article considers the place of the thirteenth-century book known as Bracton in the earlymodern common law. e article examines both the uses made of Bracton and the evidence to be found in the surviving copies of the first printed edition. It addresses the impediments to the use of Bracton, the printing of the first edition, the text's readership and place in the early-modern common-law canon and material in Bracton which seem to have been of particular interest.Bracton was a recognised source for criminal law and there is some evidence of impact on the law of evidence, servitudes and a little for contract law. An examination of the early-modern law of treason shows that Bracton had an important role in changing the concept of treason from a crime against the monarch to something like the classical crimen laesae maiestatis.

scholarly journals La preuve devant les tribunaux administratifs et quasi judiciaires

2005 ◽  
Vol 21 (3-4) ◽  
pp. 825-853
Author(s):  
Patrice Garant
Keyword(s):  
Common Law ◽  
Administrative Law ◽  
Natural Justice ◽  
Rules Of Evidence ◽  
The Common ◽  
The Law ◽  
Law Of Evidence ◽  
Administrative Justice

Procedure before quasi-judicial boards and tribunals has recently attracted abundant comment as well as some criticism. In administrative law, rules of evidence form an important part of procedure. In this paper, the author first tries to define what are the sources of the law of evidence before quasi-judicial agencies in Québec : the common law, the two Codes, statutes and regulations. Then follows in two parts an overview of the principal rules that govern the manner in which claims and arguments are brought before tribunals and the extent to which specific provisions or general principles of administrative law allow tribunals themselves to gather evidence required for the purposes of a decision. The paper suggests that administrative justice requires that the tribunal really be « master of the procedure », within the framework of natural justice.

The Indian Evidence Act and Recent Formulations of the Exclusionary Discretion in Singapore: Not Quite Different Rivers into the Same Sea

2018 ◽  
Vol 15 (1) ◽  
Author(s):  
Siyuan Chen ◽  
Eunice Chua
Keyword(s):  
Common Law ◽  
Judicial Discretion ◽  
Relevant Evidence ◽  
General Power ◽  
The Common ◽  
The Law ◽  
Law Of Evidence ◽  
Discretionary Powers

Abstract Sir James Fitzjames Stephen’s Indian Evidence Act of 1872 continues to govern the law of evidence in almost a dozen common law jurisdictions today. But the fundamental features of the IEA would undoubtedly be considered anomalous when viewed against modern notions of relevance and admissibility, foremost of which are the fact that the statute represents an attempt to codify relevance exhaustively in an inclusionary, rather than exclusionary way, and the judicial discretion to exclude relevant evidence finds no obvious expression in any of its provisions. The IEA has thus had a strained relationship with the common law, especially since judicial powers assume much greater importance in the latter realm. Recent legislative and jurisprudential developments in Singapore (a jurisdiction which has adopted the IEA) have attempted to minimise the applicability of the statute’s relevancy provisions and confer greater discretionary powers on the courts to exclude evidence. The result is that there are now at least five formulations of the court’s general power to exclude evidence, and this article considers if these formulations cohere inter se, and whether any of them can co-exist harmoniously with the IEA’s admissibility paradigm, given that its raison d’être has always been to simplify the admissibility process through exhaustive codification.

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

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