10.Preliminary evidential matters. Basic principles of evidence Flashcards
Facts in Issue
The facts in issue comprise:
(a) the facts which the prosecution bear the burden of proving or disproving (in order to establish the guilt of the accused) and
(b) the facts which, in exceptional cases, the accused bears the burden of proving (in order to succeed in the defence);
‘[W]henever there is a plea of not guilty, everything is in issue and the prosecution have to prove the whole of their case, including the identity of the accused, the nature of the act and the existence of any necessary knowledge or intent’
Thus the nature of the facts in issue in any given case is determinable by reference to the legal ingredients of the offence charged and any defence raised. Concerning the proof of facts in issue, the law operates a binary system. If the required standard of proof is met, the fact is taken to have happened. If it is not met, it is taken not to have happened. There is no room for a finding that it might have happened.
Any fact which is formally admitted under the CJA 1967, s. 10, ceases to be in issue — it must be taken to have been proved and is not open to contradictory proof.
Under s. 10(1) of the Act, a formal admission may be made of ‘any fact of which oral evidence may be given in any criminal proceedings’, words which make it clear that the section cannot be used to admit what would otherwise fall to be excluded because, say, it is inadmissible hearsay.
Although it has been held that s. 10(1) covers only facts and therefore cannot apply to the opinion of an expert a party who accepts another party’s expert’s conclusions may admit them as fact under s. 10
Formal Admissions
Ordinarily, written admissions should be put before the jury, provided at least that they are relevant to an issue before the jury and do not contain any material which should not go before the jury.
In court, a formal admission may be made by counsel or a solicitor orally.
Whatever the manner of making a formal admission under s. 10 of the 1967 Act, it should be such that what has been admitted should appear clearly on the shorthand note (but presumably, now, the Crown Court Digital Case System or the recording of the proceedings).
It is also important that the jury are clear as to what has been formally admitted. In Lewis in which counsel for D formally admitted every fact alleged in the prosecution’s opening speech and the prosecution called no evidence, relying solely on admissions, leave to appeal against conviction was refused. The court added, however, that such a procedure should be adopted only rarely and with caution, because jurors, when considering the opening speech, might find it difficult to distinguish between law, mixed fact and law, and comment.
Where a party introduces in evidence a fact admitted by another party, or parties jointly admit a fact, then unless the court otherwise directs, a written record must be made of the admission (CrimPR 24.6 (magistrates’ court) and 25.13 (Crown Court);
Section 10 will apply in the case of relevant facts in a written schedule which the parties agree to put before the jury; and will also apply to any such facts that were removed from the schedule, pending a judicial ruling on their admissibility, on their reinstatement following a judicial ruling in favour of admissibility.
Formal admissions made with the benefit of advice are an important and cogent part of the evidence in a trial. If it is sought to resile from them, leave to withdraw them is unlikely to be given under s. 10(4) without cogent evidence from the accused and advisers that the admissions were made by reason of mistake or misunderstanding.
Relevance and Admissibility
The cardinal rule of the law of evidence is that, subject to the exclusionary rules, all evidence which is sufficiently relevant to the facts in issue is admissible, and all evidence which is irrelevant or insufficiently relevant to the facts in issue should be excluded.
As to the former, however, evidence which is relevant may nonetheless be excluded if it is such that no reasonable jury, properly directed as to its defects, could place any weight on it a case concerning voice recognition evidence). As to the latter, inasmuch as an offence of strict liability involves no proof of mens rea, evidence of motive, intention or knowledge is inadmissible, being irrelevant to what the Crown has to prove and merely prejudicial to the accused.
Questions of relevance can also arise in relation to collateral facts. For example, the fact that a prosecution is private is, without more, irrelevant to the credibility of the prosecutor as a witness or the veracity of the allegation against the accused.
The binary system that operates in relation to proof of facts in issue does not apply in relation to proof of relevant facts. Thus there is scope for a finding that a relevant fact may have happened, in which case it may go some way towards making a fact in issue more probable or less probable
The Meaning of Relevance
The classic formulation of relevance is to be found in Article 1 of Stephen’s Digest of the Law of Evidence according to which the word signifies that ‘any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other’.
Nethercott provides an example of a fact which was relevant to the past existence of another fact. D1’s defence was that he had acted under duress as a result of threats by his co-accused D2. Evidence of the fact that D2 had subsequently attacked D1 with a knife was relevant to the defence because it made it more likely that D1, at the time of the offence, had genuinely feared for his safety.
On the question of relevance, Lord Simon of Glaisdale has said:
Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. I do not pause to analyse what is involved in ‘logical probativeness’, except to note that the term does not of itself express the element of experience which is so significant of its operation in law, and possibly elsewhere. It is sufficient to say, even at the risk of etymological tautology, that relevant (i.e., logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable.
The question of relevance is typically a matter of degree to be determined, for the most part, by common sense and experience.
In sexual cases, the relevance of evidence relating to the complainant’s social media accounts, such as the content of Facebook messages to friends, whether they had been deleted, and if so, when and why, will depend on the precise circumstances of the case. Such evidence is most likely to be relevant in cases where the complainant and the accused were in a relationship or knew each other. In cases where there was no contact between them before or after the alleged crime, the fact that messages had been deleted is unlikely to be relevant, in the absence of any basis for suggesting that they contained material of assistance to the defence.
Good Character
Evidence of the good character of a prosecution witness is generally inadmissible to bolster the witness’s credibility, because it amounts to ‘oath-helping’ but may be admissible if relevant to an issue in the case, for example:
in a case of rape, the defence being consent, evidence of the complainant’s disposition to resist any form of pre-marital sexual intimacy
in a case of murder, the defence being self-defence, evidence of the deceased’s non-violent disposition
and, in a case of inflicting grievous bodily harm, the defence being self-defence accompanied by evidence that the complainant had started the violence making racially abusive comments, evidence to show that the complainant was not a racist
In Mader the following propositions were said to be well established:
(1) Generally, evidence is not admissible simply to show that a prosecution witness has a good character in the sense that he or she is a generally truthful person who should be believed.
(2) However, evidence is admissible if it is relevant to an issue in the trial.
(3) The category of issues to which evidence of disposition may be relevant is not closed.
(4) If the evidence is admitted because ‘issue-relevant’, the judge should ensure that the effect of admitting it is not to water down the burden of proof on the prosecution and any good character direction given for the accused.
D was of good character and the judge had given an appropriate good character direction, the Court of Appeal observed that unless a jury hear that a Crown witness is not of good character, they will no doubt assume that there is nothing to speak against the witness’s credibility. As to this observation, it is respectfully submitted that in these circumstances the jury may well assume exactly the opposite, that the complainant is of bad character, on the reasoning that if the complainant were of good character then evidence to that effect would have been adduced in the same way that evidence of good character had been adduced on behalf of the accused. It is submitted that when an accused contradicts a prosecution witness on a relevant issue, both of them are of good character, evidence is given of the accused’s good character and the jury are directed that it is relevant to the accused’s credibility, then evidence of the good character of the prosecution witness should also be admissible and the jury should receive a direction that it is relevant to the witness’s credibility accompanied by a rider, of the kind described in Mader, as to its limitations and effect.
Circumstantial Evidence
Circumstantial evidence is to be contrasted with direct evidence.
Circumstantial evidence is evidence of relevant facts, i.e. facts from which the existence or non-existence of facts in issue may be inferred. It does not necessarily follow that the weight to be attached to circumstantial evidence will be less than that to be attached to direct evidence. For example, the tribunal of fact is likely to attach more weight to a variety of individual items of circumstantial evidence, all of which lead to the same conclusion, than to direct evidence to the contrary coming from witnesses lacking in credibility. Some types of expert evidence may be properly categorised as circumstantial rather than direct evidence.
Circumstantial evidence ‘works by cumulatively, in geometrical progression, eliminating other possibilities’.
Pollock CB, likening circumstantial evidence to a rope comprised of several cords, said:
One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.
Thus it may be in circumstantial evidence — there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.
However, although circumstantial evidence may sometimes be conclusive, it must always be narrowly examined, if only because it may be fabricated to cast suspicion on another. For this reason, it has been said that: ‘It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference’.
Nonetheless, there is no requirement, in cases in which the prosecution’s case is based on circumstantial evidence, that the judge direct the jury to acquit unless they are sure that the facts proved are not only consistent with guilt but also inconsistent with any other reasonable conclusion.
The guidance in the Crown Court Compendium, ch. 10-1, is that in a case involving any circumstantial evidence relied on by the prosecution, the judge should summarise any evidence and/or arguments relied on by the defence to rebut the evidence and/or the conclusions which the prosecution seek to draw from it and direct the jury:
(a) to examine each strand of it and decide which if any they accept and which if any they do not and decide what fair and reasonable conclusions can be drawn from any evidence that they accept;
(b) not to speculate or guess or make theories about matters which in their view are not proved by any evidence; and
(c) to decide, having weighed up all the evidence, whether the prosecution have made them sure that D is guilty.
However, there is no requirement to use these exact words.
Real Evidence
Tangible Objects
Real evidence is usually some material object, the existence, condition or value of which is in issue or relevant to an issue, produced in court for inspection by the tribunal of fact.
Little if any weight can attach to real evidence in the absence of accompanying testimony identifying the object and connecting it with the facts in issue. In some cases the tribunal of fact must not draw its own unaided conclusion without the assistance of expert testimony.
There is no rule of law that an object must be produced, or its non-production excused, before oral evidence may be given about it.
In Hocking v Ahlquist Bros Ltd proceedings against manufacturers of clothing for non-compliance with restrictions relating to the method of manufacture, in which evidence as to the condition of the garments was received from witnesses who had visited the manufacturer’s premises, it was held that the magistrate had been wrong to dismiss the information on the basis that the garments were not produced at the trial.
it is not necessary for the police to produce the very breath test device used by them on a particular occasion. Non-production, however, may give rise to an inference adverse to the party failing to produce the object in question and may go to the weight of the oral evidence adduced.
In Francis a trial for attempting to pass off a false ring, at which the ring was not produced but witnesses who had seen it gave evidence as to its falsity, Lord Coleridge CJ said:
‘though the production of the article may afford ground for observation more or less weighty, according to the circumstances, it only goes to the weight, not the admissibility of the evidence’.
Views
The term ‘view’ is used to describe both an inspection out of court of some material object which it is inconvenient or impossible to bring to court and an inspection of the locus in quo.
A view should not take place after the summing-up which was distinguished in Nixon where the inspection was at the express request of the defence).
A view should be attended by the judge, the tribunal of fact, the parties, their counsel, and the shorthand writer. In the case of magistrates, as a general rule a visit to the locus in quo should take place before the conclusion of the evidence and in the presence of the parties or their representatives, so as to afford them the opportunity of commenting on any feature of the locality which has altered since the time of the incident or any feature not previously noticed by the parties which impresses the magistrates.
The presence of the accused is important because he or she may be able to point out some important matter of which the legal adviser is ignorant or about which the magistrates are making a mistake.
