5 Evidence

Question 1

EVIDENCE - intro to Q

Answer 1

Only evidence which is sufficiently relevant to facts in issue is admissible
- evidence is relevant if it is logically probative of some matter which requires proof

Question 2

EVIDENCE - inadmissible example

Answer 2

here, evidence such as [reference by DC to needing an espresso] neither proves nor disproves any fact in issue. it is therefore irrelevant and therefore inadmissible

Question 3

EVIDENCE - principal exclusionary rules

Answer 3

1. confession s.76 PACE

2. general discretion under s.78

Question 4

CONFESSIONS - approach to Q

Answer 4

1. is this an ‘interview’ - COP C 11.1A
2. has the interview been properly conducted?
3. is there a confession- s.82(1) PACE? - STATE GENERAL RULE under s.76(1)
4. can the confession be excluded under either s.76(2) OR s.78 PACE?
5. can any other evidence be excluded under s.78 PACE?

Question 5

what are the requirements for a confession to be excluded under s.76(2)(a)

Answer 5

1. oppression - defined in s.76(8) - to be given ordinary dictionary meaning
2. impropriety on part of police
3. must have caused confession to be made

Question 6

what may the court have regard to when considering oppression under s.76(2)(a)

Answer 6

character & experience of subject

Question 7

what are the requirements for a confession to be excluded under s.76(2)(b)

Answer 7

1. things said or done must be by police
2. no impropriety on part of police
3. things said or done must have caused confession to be made

Question 8

what is included in ‘things said or done’ under s.76(2)(b)

Answer 8

• inducements to confess (e.g. offers of bail)

- breaches of PACE - must be SIGNIFICANT & SUBSTANTIAL

Question 9

essential difference between excluding evidence under s.76 and s. 78

Answer 9

s.78 - judge has DISCRETION to exclude evidence, whereas s.76 is an absolute requirement

Question 10

What is excluding evidence under s.78 often based on?

Answer 10

breaches of PACE & COP - admitting the evidence must have such an ADVERSE EFFECT ON FAIRNESS OF PROCEEDINGS that court ought not to admit it

Question 11

excluding evidence under s.78 - CASE LAW

Answer 11

R v Walsh - breaches of PACE must be significant & substantial

Question 12

Procedure - exclusion under s.76

Answer 12

once s.76 raised by defence - confession will not be admissible UNLESS P can prove, beyond reasonable doubt, that it was not obtained as a result of oppression or things said/done

Question 13

Procedure - exclusion under s.78

Answer 13

discretionary: no BOP - defence will still have to appeal for s.78 exclusion, but judge can raise exclusion even if defence advocate hasn’t

Question 14

How is application for exclusion of evidence made in CC

Answer 14

voir dire - jury (arbiters of fat) asked to leave

Question 15

How is application for exclusion of evidence made in MC

Answer 15

no division - justices are arbiters of law AND fact

Question 16

ID evidence - when is it an issue?

Answer 16

where:

1. D disputes evidence (‘I was not there’ c.f. ‘didn’t do it’)
2. ID evidence wholly/substantially only evidence implicating D

Question 17

When do the Turnbull guidelines apply?

Answer 17

where the case depends ‘wholly or substantially’ on identification