ABSTRACT
INTRODUCTION Presumptions fit awkwardly into an evidence course. When lawyers first started to write books on evidence, they used to include large amounts of substantive law on such subjects as trespass, nuisance, bailment, actions on the case, and so forth. The object of these writers was to include not only what we should recognise as rules of evidence, relating to such matters as the competence of witnesses and hearsay, but rules about what had to be proved in order to establish particular claims or defences. There was no unifying principle other than the convenience of the arrangement for practitioners. (See, for example, Gilbert’s The Law of Evidence, 2nd edn, 1760. This was the leading work on the subject in the second half of the 18th century; the last edition was published in 1801. See generally William Twining, ‘The Rationalist Tradition of Evidence Scholarship’, in Rethinking Evidence: Exploratory Essays, 2nd edn, 2006, pp 35-98.)
Modern evidence textbooks deal with some, but by no means all, presumptions. (See the Checklist for details.) However, this is really no more than a hangover from the older way of writing. No successful attempts have been made to find an all-embracing theme that would make ‘presumptions’ a true part of evidence law. What you will be looking at will be several quite distinct bits of substantive law that have little or no connection with each other.
