Fact

Section 2(1)(f) of the BSA provides that fact means and includes (i) any thing, state of things, or relation of things, capable of being perceived by the senses, and (ii) any mental condition of which any person is conscious. The definition was earlier in Section 3 of the Evidence Act. The first limb covers physical or external facts and the second covers psychological or internal facts. Because the definition uses means and includes, it is wide.

The Illustrations show its reach. That objects are arranged in a certain order in a certain place is a fact; so is the fact that a person heard or saw something, or said certain words. That a person holds a certain opinion, has a certain intention, acts in good faith or fraudulently, uses a word in a particular sense, or was conscious of a sensation at a given time is also a fact. Mental states are therefore proved like any other fact, usually by inference from conduct and circumstances.

The word must be read with related definitions. A fact in issue under Section 2(1)(g) is a fact from which the existence, non-existence, nature or extent of a right, liability or disability asserted or denied in the proceeding necessarily follows. A fact is relevant to another under Section 2(1)(k) when it is connected with it in a way the Act declares relevant. Section 3 allows evidence of facts in issue and relevant facts, and of no others. Sections 2(1)(c), (i) and (j) say when a fact is disproved, not proved and proved, using the prudent man test for proof and disproof.

Examiners ask whether a mental condition is a fact, how a fact in issue differs from a relevant fact, and which provision limits evidence to those two categories. The contrast between fact and law also matters in substantive criminal law, for instance in the defences of mistake of fact under Sections 14 and 17 of the BNS, where a mistake of fact may excuse but a mistake of law does not.