Best Evidenve Rule

Question 1

Best evidence rule requires

Answer 1

That primary evidence be produced rather than secondary

Eg actual item rather than a photo

Question 2

Two conditions for insistence upon rule

Answer 2

Must be reasonable and practicable for evidence to be produced

And

Failure to produce primary evidence would lead to material prejudice for other party

Question 3

BE rule cannot be blindly insisted upon…

Answer 3

There must be material prejudice to party objecting (usually accused)

And even then other party may argue that it would be inconvenient and impractical to produce item in court

Question 4

Anderson
V
Laverock

Answer 4

Inconvenient and impractical

Poaching case where salmon seized and destroyed prior to trial

Although court accepted inconvenient and impractical to retain fish, accused should have had opportunity to inspect prior

Held: failure to do so had materially prejudiced accused and conviction was quashed.

Question 5

Nocher
V
Smith

Answer 5

D unsuccessfully argued for appeal on basis that failure to produce warrant at trial under which search was conducted was prejudicial

Held: rejected. Whilst admirable it be produced, failure was not so prejudicial to as to amount to fatality

Question 6

If accused is going to claims material prejudice due to failure of production of item central to case, then made need to

Answer 6

Suggest the need for production

Eg not normal to produce motor car at trial

Question 7

Kelly
V
Allan

Answer 7

Failure to produce motorcycle at trial for accusation if reset caused no material prejudice to lead to conclusion that conviction represented a miscarriage of justice

Material prejudice must be fairly serious or significant for best evidence rule to be insisted upon