The entire law of evidence rests on three concepts: fact, fact in issue, and relevant fact. The BSA allows only facts in issue and relevant facts to be proved. Everything else is inadmissible, however interesting or probative it might seem. These three concepts define the boundaries of what may enter a trial.
BSA S.2(1)(b) = IEA S.3 "fact". BSA S.2(1)(f) = IEA S.3 "facts in issue". BSA S.3 = IEA S.5 (evidence may be given of facts in issue and relevant facts).
Definitions
Fact (S.2(1)(b))
"Fact" means and includes:
- Anything, state of things, or relation of things, capable of being perceived by the senses.
- Any mental condition of which any person is conscious.
| Category | Example |
|---|---|
| Physical fact | A man heard or saw something; objects occupy a certain place; a document exists |
| Mental fact | A person had a certain intention, knowledge, good faith, negligence, rashness |
Why mental facts are included: Criminal liability depends on intention and knowledge (mens rea). If mental facts were not "facts" under the Act, the prosecution could never prove intent. The definition ensures that subjective states of mind are provable.
Facts in Issue (S.2(1)(f))
"Facts in issue" means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding, necessarily follows.
In a criminal case, the facts in issue are typically:
- That the accused did the act charged (actus reus).
- That he did it with the required mental state (mens rea).
- That the act satisfies all the elements of the offence charged.
In a civil case, the facts in issue are the facts from which the right or liability asserted by the plaintiff, or denied by the defendant, follows.
Relevant Facts
"Relevant facts" are facts connected with facts in issue in any of the ways specified in Part II of the BSA (S.3 to S.50). A fact is relevant only if the BSA declares it to be relevant. The list is exhaustive, not illustrative.
BSA S.3 (= IEA S.5): "Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others."
The Relationship: Facts in Issue, Relevant Facts, and Admissibility
| Concept | Role | May be proved? |
|---|---|---|
| Facts in issue | The ultimate facts to be decided | Yes, always |
| Relevant facts | Facts connected to facts in issue in ways the BSA specifies | Yes, if declared relevant by Part II |
| Irrelevant facts | Facts not declared relevant | No: inadmissible |
The formula: Admissibility = Relevancy + Compliance with the rules of proof.
A fact may be relevant (connected to the fact in issue) but still inadmissible if it fails a rule of proof (e.g. hearsay, best evidence rule). Relevancy is necessary but not sufficient for admissibility.
How Facts in Issue Are Determined
| Step | Action |
|---|---|
| 1 | Read the charge (criminal) or the plead (civil) |
| 2 | Identify the elements of the offence or the cause of action |
| 3 | Each element that the prosecution/plaintiff must prove, and each defence element the accused/defendant must prove, is a fact in issue |
| 4 | Only facts that necessarily determine the existence or non-existence of a right or liability qualify |
Example (murder under BNS S.101(c)):
- Fact in issue 1: A caused death to B (actus reus).
- Fact in issue 2: A intended to cause the particular bodily injury inflicted.
- Fact in issue 3: That injury was sufficient in the ordinary course of nature to cause death.
Relevant Facts: The Categories in Part II
Part II (S.3 to S.50) declares facts relevant in these broad categories:
| Category | BSA Provisions | IEA Equivalent |
|---|---|---|
| Facts forming part of the same transaction (res gestae) | S.4 | S.6 |
| Facts which are occasion, cause or effect | S.5 | S.7 |
| Motive, preparation and conduct | S.6 | S.8 |
| Statements accompanying or explaining acts (explanatory conduct) | S.6 | S.8 |
| Facts necessary to explain or introduce | S.7 | S.9 |
| Conspiracy | S.8 | S.10 |
| Facts not otherwise relevant: course of business, existence of custom | S.9, S.10 | S.11, S.13 |
| Existence of state of mind (intent, knowledge, good faith, negligence) | S.11 | S.14 |
| Facts showing system or design | S.12 | S.15 |
| Admissions | S.14 to S.17 | S.17 to S.23 |
| Confessions | S.18 to S.23 | S.24 to S.30 |
| Dying declarations and other statements | S.24 to S.28 | S.32 to S.38 |
| Judgments | S.29 to S.35 | S.40 to S.44 |
| Opinion | S.36 to S.42 | S.45 to S.51 |
Recall Check
- What is the difference between a fact in issue and a relevant fact?
- Can a relevant fact be inadmissible?
- What does BSA S.3 provide?
- How are facts in issue identified in a criminal case?
Distinctions
| Basis | Fact in Issue | Relevant Fact |
|---|---|---|
| Role | The ultimate fact to be proved or disproved | A fact that connects to or helps prove the fact in issue |
| Determined by | The charge or pleadings | The provisions of Part II (S.3 to S.50) |
| Always provable? | Yes | Yes, if declared relevant by the BSA |
| Example (murder) | "A killed B with intent" | Motive (A had a grudge against B), preparation (A bought a knife), conduct (A fled) |
| Basis | Relevancy | Admissibility |
|---|---|---|
| Definition | Logical connection between the fact and the fact in issue | Legal permissibility of the evidence |
| Governed by | Part II of the BSA (S.3 to S.50) | Rules of proof (hearsay, best evidence, privilege, etc.) |
| Relationship | A necessary condition for admissibility | Requires relevancy plus compliance with proof rules |
| Example | A's confession is relevant (S.18). But if obtained by inducement (S.18 proviso), it is inadmissible |
Flashcards
Define "fact" under BSA S.2(1)(b).
Anything capable of being perceived by the senses, or any mental condition of which a person is conscious.
What are "facts in issue"?
Facts from which the existence, non-existence, nature or extent of a right, liability or disability asserted or denied necessarily follows.
What does BSA S.3 provide?
Evidence may be given of facts in issue and of such other facts as are declared relevant by the BSA, and of no others.
Can a fact be relevant but inadmissible?
Yes. Relevancy is a necessary but not sufficient condition. A relevant fact may be excluded by a rule of proof (e.g. a confession obtained by threat is relevant but inadmissible under S.18).
How are facts in issue identified?
By reading the charge or pleadings and identifying every element of the offence or cause of action that must be proved.
Exam Scenario
Problem: A is charged with murder under BNS S.101(c) for stabbing B. The prosecution seeks to prove: (a) that A had a longstanding enmity with B over a land dispute, (b) that A purchased a knife two days before the incident, (c) that A's neighbour C had said a week earlier "A will kill B one day," and (d) that A fled the village immediately after the incident. Identify the facts in issue and classify each piece of evidence.
Step 1: Identify the facts in issue
Under BNS S.101(c), the prosecution must prove:
| Fact in Issue | What must be proved |
|---|---|
| 1 | A caused death of B by stabbing |
| 2 | A intended to inflict the particular bodily injury |
| 3 | That injury was sufficient in the ordinary course of nature to cause death |
Step 2: Classify each item
| Item | Classification | Relevant under | Admissible? |
|---|---|---|---|
| (a) Enmity over land | Relevant fact: motive | BSA S.6 (motive) | Yes |
| (b) Purchase of knife two days before | Relevant fact: preparation | BSA S.6 (preparation) | Yes |
| (c) C's statement "A will kill B one day" | Hearsay: statement of a third person not on oath | Not relevant under any provision; it is C's opinion, not a fact perceived | Generally inadmissible |
| (d) A fled the village | Relevant fact: subsequent conduct | BSA S.6 (subsequent conduct of the accused) | Yes |
Step 3: Explain why (c) is problematic
C's statement is:
- Not a dying declaration (C is alive)
- Not res gestae (made a week before, not contemporaneous with the transaction)
- Not an admission or confession by A
- Not expert opinion
- Just C's prediction, which is irrelevant hearsay
It does not fall within any category in Part II and is therefore not a relevant fact. It is inadmissible.
Motive is relevant but not a fact in issue. The prosecution does not need to prove motive to convict under S.101(c). But motive (S.6 BSA) is relevant to show why A acted as he did, and strengthens the circumstantial chain.
C's statement looks like evidence of intent but is hearsay. A common trap: the statement seems to show A's dangerous character. But it is C's opinion about what A will do, not A's own statement, and is inadmissible because it falls outside every Part II category.
Conclusion. Facts in issue: A caused death, intended the injury, injury was objectively fatal. Items (a), (b) and (d) are relevant facts under S.6 and admissible. Item (c) is inadmissible hearsay.
See Also
- Relevancy and Admissibility Distinguished : the fuller treatment of the relevancy/admissibility distinction.
- Doctrine of Res Gestae : the most important category of relevant facts under S.4.
- Motive, Preparation and Conduct : the S.6 categories used in this Exam Scenario.