10: Evidential matters

Question 1

What is a

fact in issue?

Who has the BOP?

Answer 1

Facts a party must prove to succeed @ trial. Gen rule: pros bears BOP on all of these. Pros MUST prove their whole case.

Question 2

What is a s10 formal admission?

Answer 2

Allows formal admission of any fact of admissible evidence. Can be made on behalf of pros/def and are conclusive evidence of fact admitted.

Question 3

What is the SAFEGUARD for a s10 formal admission?

Answer 3

If not mad orally in court = MUST be in writing, signed. If made on behalf of D, admission must be made by counsel/solicitor.

Question 5

What does a s10 formal admission include:

Answer 5

Admission includes: what is admitted on shorthand note. If party introduces admitted fact, unless court orders otherwise, written record = MUST.

Unlikely leave to withdraw will occur without cogent evidence from D and those advising -) there is mistake or misunderstanding.

Question 6

What is:

Relevance =

Answer 6

extent evidence is capable of tending to prove/disprove fact in issue. + admissibility = Even if relevant, MAY be inadmissible.

Question 7

If evidence = relevant and not excluded by rule of evidence, general discretion to exclude otherwise admissible pros evidence where:

Answer 7

1. Pros evidence is more prejudicial than probative (common law); and
2. Pros evidence would have such an adverse effect on fairness of proceedings it shouldn’t be admitted (s78 PACE).

Question 8

What is:

Direct evidence?

Answer 8

speaks for itself in providing a fact.

Question 9

What is:

Circumstantial evidence =

Answer 9

requires an inference=be drawn. Circumstantial evidence MAY have same weight as direct evidence.

Question 10

What is:

Tangible objects?

Answer 10

real evidence -Little weight attached in absence accompanying testimony.

Question 11

What is:

Real evidence?

Answer 11

tangible, e.g. knife. Court can go to the real evidence = “a view”.

Question 12

What are

Views:

Answer 12

Both inspection out of court of material object (if inconvenient or impossible to bring to court) and inspection of locus in quo. View should NOT take place after summing-up.

Question 13

A view should be attended by:

Answer 13

1. Judge
2. Tribunal of fact
3. Parties
4. Counsel
5. Shorthand wrier

In Mags, the visit of locus in qup should occur = before conclusion evidence + in presence parties or representatives.

Question 14

Judge MUST produce ground rules for a view, after discussion with advocates. Ground rules MUST contain:

Answer 14

1. Details of what the jury should be shown
2. In what order
3. Who will be permitted to speak, and what will be said;
4. It should make provision for jury to ask questions.

Question 15

Trial on indictment = Gen rule,

Who decides the question of fact?

Answer 15

Gen rule, question of law = for judge. Question of fact = jury. In trial without jury, judge = both law and fact + if conviction, MUST give judgment stating reasons for conviction.

Lay mags when sitting with judge in CC, are also judges of court. They MUST accept ruling of judge in Q. law

Question 16

Question of law in jury trials:

Answer 16

1. Discharge of juror
2. Competent of persons to give sworn/unsworn evidence
3. Admissibility of evidence
4. Withdrawal of issue form jury
5. Submission of no case to answer
6. Ancillary matters to trial (e.g. bail, costs)

Question 17

Q.Fact for jury include:

Answer 17

1. Credibility of witnessed and weight of evidence adduced; and
2. Satisfied of (non-) existence of facts in issue

Question 18

Law + fact in summary trial = Where proceedings with lay justices, they decide law + facts. With law, they should seek advice from

Answer 18

justice’s legal adviser. District judges are the same, but don’t need to ask for advice.

Question 19

In jury trials, questions of fact for judge are:

Answer 19

1. Whether D is fit to plead
2. Existence/non of prelim facts
3. Evaluation of evidence for purpose of commenting on weight in summing up
4. Sufficiency of evidence.

Question 20

S78 PACE – Discretionary power to exclude otherwise admissible pros evidence. Court MAY refuse allow pros evidence if: TEST:

Answer 20

admission would “have such an adverse effect on the fairness of proceedings that the court not to admit it”. S78 applies when pros proposes to rely on evidence + apps to exclude should be made before evidence adduced. S78- is discretionary. CA doesn’t usually interfere with s78 decision, only where judge is Wednesbury unreasonable.

Question 21

Who can use s78?

Answer 21

S78 used to exclude any pros evidence they intend to rely. S78 scope is WIDER than at common law.

S78 NOT confirmed (as in common law) to admissions, confessions and evidence obtained from D after commission of offence, but ANY evidence. S78 extends to evidence obtained: unlawfully, improperly or unfairly.

Question 22

Discretion to exclude at common law: TEST:

Answer 22

discretion to exclude pros evidence if its prejudicial effect on the jury outweighs its true probative value.